YCJA Participant Overview

SECTION 1
Overview of the YCJA

We gratefully acknowledge the funding
for these materials which was provided by
theYouth Justice Renewal Fund of Justice Canada.
Section 1: Overview of the YCJA 1.1
1.2 Section 1: Overview of the YCJA
AGENDA Time
Welcome
Section 1 Overview of the YCJA
Section 2 The Case of Billy James
Extrajudicial Measures
Section 3 The Case of Steve Chong
and Jason Dunlop
Youth Sentences, Statements
Section 4 The Case of Roberta Hill
Conferences, Victim Services,
Referrals to Child Welfare,
Pre-trial detention
Section 5 The Case of Jean Marquette
Adult Sentences, IRCS (intensive
rehabilitative custody and
supervision), Pre-sentence reports,
Reintegration, Publication
Section 6 Aboriginal Issues
Section 7 Restorative Justice Program
New Terminology
Dispositions are now Sentences
Pre-disposition Reports are now
Pre-Sentence Reports
Youth Courts are now Youth
Justice Courts
Judges are now Youth Justice
Court Judges
Alternative Measures are now
Extrajudicial Sanctions
The YCJA reminds police officers
of the discretion they have
to use Extrajudicial Measures
such as warning a YP
Police Officer
Requirements
Police officers are required
to consider the use of their
discretionary powers before
laying a charge or referring
to Extrajudicial Sanctions
Peace Bonds
Can a young person be
placed on a Peace Bond?
Yes, a young person can
be placed on a Peace Bond
under the YCJA
Pre-Trial Detention
Pre-trial detention cannot be
used as a substitute for
appropriate child protection,
mental health or other social
measures
Pre-Trial Detention
When considering public
safety there is a presumption
that the pre-trial detention is not
necessary if the YP could not be
sentenced to custody for the offence
Sentencing Provisions
Statement of purpose and principles
New restrictions on the use of custody
Requires alternatives to custody to be
explored.
Several new sentences are available
All custodial sentences are followed by
supervision in the community
Adult Sentencing
A YP can receive an adult
sentence after being found guilty in
Youth Justice Court
The age of presumption is set by the
province at 14, 15 or 16
A new presumptive offence
- third serious violent offence - is added
Publishing YP Names
The YPs name can be published if:
They receive an adult sentence
They are found guilty of a presumptive
offence and receive a youth sentence
unless a judge orders otherwise
They are at large and dangerous
-emergency publication increased
from two to five days
YOUTH CRIMINAL JUSTICE ACT TRAINING
Participants Response Form
Justice Canada requires that accurate records of all participants in
YCJA training be maintained. For this reason, all participants must
complete Part A of this form and return it to their trainer at the end
of the workshop. The completion of Part B is optional.
PART A Participant Information
Name:
Organization Name:
Organizations Address:
Business Phone #:
email:
PART B Participant Questions
Participants may include any unaswered questions about the Act or
its implementation in their workplace on this form. All answers will
be posted on the Web Site. Any participants who include their
email address will also receive answers to their own questions.
Questions:
Email Address:
PRF
FORM
PEF
FORM
YOUTH CRIMINAL JUSTICE ACT TRAINING
Participants Evaluation Form
Please complete and return to the facilitator at the end of the module.
Session: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ _ _ _ _ _
Facilitator:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Please comment on any rating of 4 or less.
LOW HIGH
Content: 1 2 3 4 5 6 7
Comments:
Relevance: Was this pertinent 1 2 3 4 5 6 7
to your work?
Comments:
Learning: How much new 1 2 3 4 5 6 7
learning did you acquire?
Comments:
Facilitator: 1 2 3 4 5 6 7
Comments:
Materials: 1 2 3 4 5 6 7
Comments:
Learning Environment: 1 2 3 4 5 6 7
(room, table set-up)
Comments:
Overall Satisfaction: 1 2 3 4 5 6 7
Comments:
SECTION 2
THE CASE OF BILLY JAMES
Section 2: The Case of Billy James 2.1
2.2 Section 2: The Case of Billy James
The Act requires Police to consider
the use of several of the
Extrajudicial Measures before
charging a YP or using
This term includes:
- Taking no further action
- Warnings
- Police cautions
- Referrals to a program or
agency in the community
- Crown cautions
- Extrajudicial Sanctions
If taking no further action, warning,
cautioning or referrals to a program
are not adequate to deal with the
offence a referral may be made to
The new term Extrajudicial
Sanctions is used to refer to what
was previously called Alternative
Measures in the Young Offenders
Act.
The principles which apply to
Extrajudicial Measures are:
They are often the most appropriate and
effective way to address youth crime
They allow for effective and timely
interventions
That they are presumed to be adequate
to hold first time non violent young
offenders accountable
Prior use of Extrajudicial Measures or a
prior finding of guilt does not preclude
their use.
Department of Justice Ministre de la Justice
Canada Canada
http://canada.justice.gc.ca/en/ps/yj/repository/4refrenc/02tables/4020001a.html
YCJA Explained Reference : Tables
Principal Charge in Majority of Cases in Youth Court
(Canada, 1998-99)
Total Number
of Cases
Percent
Theft under $5,000 15,801 15%
Possession of stolen property 5,208 5%
Failure to appear 11,597 11%
Failure to comply with a disposition 13,072 12%
Subtotal 45,678 43%
Other thefts 4,975 5%
Mischief/damage 5,336 5%
Break and enter 12,251 11%
Minor assault 10,545 10%
Total: Sum of eight offences 78,785 74%
All cases 106,665 100%
Source: Statistics Canada (2000), Youth Court Statistics 1998-99.
Ottawa: Canadian Centre for Justice Statistics. (*)
Canada Canada
http://canada.justice.gc.ca/en/ps/yj/repository/3modules/01extud/3010401a.html
Checklist for Police Officers: Police Options (S. 6)
1. Do you have reasonable grounds to believe that the youth has committed an offence?
If you do not, then you should not continue with this checklist.
If yes, then you may continue with this checklist.
Note: You should ensure that you have advised the youth of his or her right to counsel and
afforded him or her access to counsel wherever that is required during any exercise of police
procedures or powers with respect to this incident. See the module on Right to Counsel.
Before starting judicial proceedings or considering an extrajudicial sanction, a
police officer must consider whether it would be sufficient to administer one of the
measures listed in YCJA, section 6: take no further action, warn, caution, or refer the
young person.
Note: You should be aware that you may use a conference where you think it might assist
you in decision-making in this part of the process. See the module on Conferences.
2. An extrajudicial measure is often the most appropriate, effective and timely response to
criminal conduct by youth.
In this instance, you should consider using one of the measures listed in section 6
(take no further action, warn, caution, or referral), unless there are clear indications
that these measures would not be adequate to hold the youth accountable for his or
her conduct.
3. If this is a non-violent, first offence by this youth, an extrajudicial measure is presumed to be
adequate to hold the youth accountable for his or her conduct.
Do you believe that the youth has committed a non-violent offence and has not
previously been found guilty of an offence? If so, you must consider using one of the
measures listed in section 6 unless there are exceptional circumstances that indicate it
would not be adequate to hold the youth accountable for his or her conduct.
4. You may choose between one of four measures in order to hold the youth accountable for his
or her offence. You may choose
to take no further action against the youth,
to give the youth a warning,
to issue a caution to the youth or
to refer the young person, with his or her consent, to a program or agency in the
community that may assist him or her not to commit offences.
The measure that you use should be applied fairly and be proportionate to the offence. You
should use the least restrictive measure that will hold the youth accountable, ensuring the
minimum intervention warranted to respond to the conduct. The measure should always be
less than one a court would impose for this conduct, should the youth have been tried and
found guilty of the offence.
YCJA Explained Extrajudicial Measures : Checklists
Within the limits of fair and proportionate accountability, the measure should be designed
and applied with the following principles and objectives in mind:
emphasize timeliness (ensuring the measure is applied with as close a link to the
conduct as possible, to help the youth understand the relationship between action and
consequences);
be an effective intervention;
promote the rehabilitation of the youth;
offer meaningful consequences to the youth;
encourage the youth to acknowledge harm he or she may have caused;
encourage the youth to repair harm he or she may have caused;
involve the family of the youth;
respect the youths rights, and especially any special protections or guarantees of
rights applying to youth.
Note: For further details and information on the considerations you should bear in mind when
deciding which measure to use, see Principles and Objectives in the current module.
SECTION 3
THE CASE OF STEVE CHONG
AND JASON DUNLOP
Youth Sentences, Statements
Section 3: The Case of Steve Chong and Jason Dunlop 3.1
3.2 Section 3: The Case of Steve Chong and Jason Dunlop
Youth Sentences
Purpose
The purpose of Youth Sentences is:
- to hold the YP accountable for
the offence through the imposition
of just sanctions that have
meaningful consequences
- to promote the YPs
rehabilitation and
reintegration into society
Thereby contributing to the
long-term protection of the public
Principles
The principles which must be followed
in youth sentencing are:
a. the sentence must not result in a
greater punishment than would be
appropriate for an adult convicted of
the same offence in similar
circumstances
b. the sentence must be similar to
youth sentences in the region for
similar YPs found guilty of the same
offence committed in similar
circumstances
c. the sentence must be proportionate
to the seriousness of the offence and the
YPs degree of responsibility
d. All reasonable alternatives to custody
must be considered, with particular
attention to the circumstances of
aboriginal youth
e. While proportionate the sentence
must:
(a) be the least restrictive that can
achieve the purpose of sentencing
(b) be most likely to rehabilitate
and reintegrate
(c) promote a sense of responsibility
and an acknowledgement of the harm
done to the victims and the
community
Factors
The factors which the court MUST
consider when determining a youth
sentence are:
(a) degree of participation
(b) harm done to victims and if intentional
or reasonably foreseeable
(c) reparation made to victim and
community
(d) time already spent in custody in
relation to the offence
(e) previous findings of guilt
(f) relevant aggravating or mitigating
circumstances
Restrictions on Use of
Custody
The court must NOT impose a
custodial sentence UNLESS:
(a) YP found guilty of a violent
offence
(b) YP failed to comply with
non-custodial sentences
(c) YP guilty of an indictable
offence for which an adult can
be sentenced to imprisonment
for more than 2 years and also has
a history of findings of guilt
(d) In exceptional cases, when the
offence is indictable, and the
aggravating circumstances would
make a non-custodial sentence
inconsistent with the purpose and
principles of youth sentencing,
a custodial sentence may be
imposed.
New Youth Sentences
Reprimand
- a warning by a judge
Intensive Support and
Supervision Program (ISSP)
- a more intensive form of probation.
Attendance Program Order
- required to attend a program at
specified times and on conditions
set by the court
Deferred Custody and
Supervision Order
- similar to conditional sentences for
adults
Intensive Rehabilitative Custody
and Supervision Order (IRCS)
- for presumptive offences committed
by YPs with psychological, mental or
emotional illnesses.
Custodial Sentences
All Custodial Sentences are followed
by a period of supervision in the
community
Statements
The statement provisions are very
similar to the YOA. Courts, however,
can admit statements despite technical
irregularities in the provision or waiver
of rights.
NOTES: Introducing Steve Chong and Jason Dunlop scenario
Canada Canada
Canada Canada
http://canada.justice.gc.ca/en/ps/yj/repository/3modules/04youth/3040301h.html
Youth Sentencing Options
There is a broad range of possible sanctions that a court may consider in determining an
appropriate sentence. A sentence must be in accordance with the purpose and principles of
sentencing and may consist of one or more sanctions that are not inconsistent with each other.
These various sanctions or sentencing options include several new options along with options that
existed under the YOA.
The options include both non-custodial and custodial sentences. All custodial sentences include a
portion that the young person is to serve under supervision in the community. Before imposing a
sentence that involves custody, the court must satisfy itself that none of the restrictions on
custody set out in the YCJA exist.
Non-custodial Sentencing Options
The majority of sentencing options provide alternatives to custody, consistent with the objective
in the preamble to the YCJA of reducing the over-reliance on incarceration for non-violent young
persons. The YCJA provides a range of alternatives that allow a sentencing response to be tailored
to the individual case, including several new options.
Reprimand (para. 42(2)(a))
This new sentencing option is a formal rebuke by the judge in court. It is essentially a stern
scolding or lecture from the judge and may be most appropriate in minor cases in which the
experience of being apprehended, taken through the court process and reprimanded appears to be
sufficient to hold the young person accountable for the offence. It can reinforce to the young
person that his or her behaviour was wrong. It may be appropriate in cases in which the court has
determined that reparation made by the offender to the victim, or time spent by the offender in
detention, essentially satisfies the requirement of a proportionate sentence. A reprimand may also
serve as a means of communicating to the prosecutor that, in the courts opinion, the case should
have been dealt with outside the court process. The period of access to the record of a reprimand
is two months (para. 119(2)(c)). This period is much shorter than the period of access that applies
to the record of an absolute discharge (two years) or a conditional discharge (three years).
Canada Canada
YCJA Explained Youth Sentencing : Explanatory Text
Absolute Discharge (para. 42(2)(b))
The court may order an absolute discharge of the young person if it is in the best interests of the
youth and not contrary to the public interest.
Conditional Discharge (para. 42(2)(c))
The court may order a discharge of the young person on conditions. In addition, the court may
require the young person to report to and be supervised by the provincial director.
Fine (para. 42(2)(d))
The court may impose a fine up to $1000 on the young person. The court must consider the
youths ability to pay but has discretion in fixing time and terms for payment. Provinces may
establish work programs for young persons to earn work credits towards paying the fine. A
surcharge may be imposed on the fine and used, at the provinces discretion, to provide assistance
to victims services.
Compensation (para. 42(2)(e))
The court may order a young person to compensate another person for loss, damage or injury, by
paying an amount of money determined by the court. The court must consider the youths ability
to pay and has discretion in fixing the time and terms for payment. As with all of the sentencing
options, the court must comply with the purpose and principles of sentencing in imposing this
sanction. The principle of proportionality, for example, may restrict the amount of compensation
that may be ordered. The amount of loss or damage caused by the offence may exceed the
seriousness of the offence and the degree of responsibility of the young person. As discussed
above, a relevant factor in determining the seriousness of the case and, therefore, a proportionate
sentence is whether the loss or damage was intended or could reasonably have been foreseen by
the young person. In addition, accountability of young persons must be consistent with their
greater dependency and reduced level of maturity.
Restitution (para. 42(2)(f) and (g))
The court may order restitution of property to the person owning it at the time of the offence.
Reimbursement of Innocent Purchaser (para. 42(2)(g))
If the court has ordered restitution of property to its owner, the court may also order the
reimbursement of an innocent purchaser of the property. The court may fix the time and terms for
payment. As noted above with respect to compensation orders, the amount of money that the
court may order as reimbursement is subject to the sentencing principles, including the principle
of proportionality.
Personal Service (para. 42(2)(h))
The court may order the young person to compensate a person by way of personal service for a
loss, damage or injury suffered. Alternatively, the court may order that the compensation be in
kind. An order under paragraph 42(2)(h) requires the consent of the person to be compensated. In
addition, the order must not interfere with the young persons normal hours of education or work.
The order must not exceed 240 hours of service that can be completed within twelve months.
Community Service (para. 42(2)(i))
The court may order a young person to perform community service that does not exceed 240
hours of service that can be completed within twelve months. The community service must be
part of a program approved by the provincial director or the person or organization for whom the
service is to be performed must have consented to it.
Prohibition Order (para. 42(2)(j))
The court may impose on the young person an order of prohibition, seizure or forfeiture that is
authorized under federal legislation. If a young person is found guilty of an offence referred to in
subsection 109(1) of the Criminal Code (e.g., an indictable offence in which violence was used
and is punishable by imprisonment for ten years or more), the court must make an order
prohibiting the young person from possessing a firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. This
mandatory prohibition order ends not earlier than two years after the completion of the custodial
portion of the sentence or, in the case of a non-custodial sentence, after the finding of guilt.
Probation (para. 42(2)(k))
The young person may be placed on probation, with conditions, for a period of up to two years.
Section 55 sets out mandatory and optional conditions of probation orders. The potential range of
conditions is very broad. The conditions may include requiring the young person to attend school,
reside in a place that the provincial director may specify, and any other conditions that the court
considers appropriate. Although the flexibility of a probation order permits creative,
individualized sentences, it must be used with restraint because of the negative consequences of
imposing unrealistic and over-reaching or intrusive conditions on a young person for a period
of up to two years.
Conditions on probation: Under the YOA, approximately 20% of custody sentences are the
result of a young person being found guilty of breach of a condition of probation. Approximately
50% of young persons found guilty of a breach of a condition of probation are sentenced to
custody. Clearly, breach of a condition of probation is a significant factor contributing to
Canadas over-reliance on incarceration.
A serious concern in the setting of probation conditions for a young person is that the conditions
may set up the young person for failure and, therefore, a possible charge of breach of probation.
The result may be that a young person is incarcerated for behaviour that would not justify a
criminal charge if it were not related to a probation order.
Conditions of probation must be assessed as to whether or not they are in accordance with the
purpose and principles of sentencing. Although a condition may be intended to promote the
rehabilitation of the young person, it should be carefully scrutinized to determine whether there
is a clear and direct relationship between the condition and a cause of the young persons criminal
behaviour. A realistic assessment should be made as to whether the young person will be likely to
comply with the condition. In addition, if a condition is essentially an attempt to address child
welfare needs of the young person, it should not be imposed. A referral to a child welfare agency
under section 35 should be made instead.
Although it is possible to charge the young person with breach of probation if he or she does not
comply with a probation order, the YCJA does not require that a charge be laid. An alternative
approach, which will often be more consistent with the objectives and principles of the YCJA, is
to initiate a review of the probation order. Reviews provide an opportunity to make changes to the
conditions that can be more effective in promoting the rehabilitation and reintegration of the
young person. (See Reviews of Non-custodial Sentences.)
Intensive Support and Supervision Program Order (para. 42(2)(l))
In this new sentencing option, the young person receives a high level of support and supervision
in the community to assist him or her to change his or her behaviour. It is intended to provide
closer monitoring and more support than probation. It is intended to provide much smaller
caseloads than probation and is particularly well suited for many offenders who under the YOA
have been sentenced to custody.
The use of this sentencing option with an offender can occur only if the provincial director has
determined that an intensive support and supervision program is available. Provinces and
territories may decide not to make this option available to the court by deciding not to implement
this provision of the Act. If the option is not available, the court may be able to achieve a similar
result through a probation order by attaching various conditions that involve increased
supervision and support for the young person.
The intensive support and supervision order is intended to be an alternative to custody and,
therefore, is consistent with the YCJAs objective of reducing the high rate of custody under the
YOA. This intended function of providing an alternative to custody is highlighted by its inclusion
in subsection 42(2) as a distinct sanction that is not expected to be the same as a probation order.
Federal-provincial cost sharing agreements for the YCJAs implementation specifically identify
intensive support and supervision programs as one of the high priority areas in which provinces
are able to receive additional federal funding.
Conditions on supervision: Conditions that may be attached to an intensive support and
supervision order are similar to those that may be attached to a probation order. The provisions of
the YCJA that apply to conditions of probation orders also apply to conditions of intensive
support and supervision.
The issues and concerns regarding probation conditions, noted above, are also relevant to
conditions of intensive support and supervision orders. There is an even greater need to be
concerned about imposing conditions that may set up the young person for failure. Research has
found that the higher level of supervision in this type of order can result in more findings of
technical violations of conditions. Depending on enforcement policy, these technical violations
can lead to incarceration. This problem reinforces the need to reserve this order for young persons
who otherwise would be sentenced to custody. If not used with appropriate restraint, the use of
intensive support and supervision could have a net widening effect of increasing the number of
youths committed to custody.
The support component of this order is particularly relevant to the YCJAs sentencing requirement
that a sentence must promote the rehabilitation of the young person. The support for the youth
should be designed to respond to the specific needs or problems that appear to contribute to the
youths offending behaviour. Since the youths who are subject to this order are likely to have
significant and multiple needs, the provincial program to implement the order should have
sufficient flexibility to allow the support to be individualized and targeted to those specific needs.
Attendance Order (para. 42(2)(m))
This new sentencing option requires the young person to attend a program at specified times (up
to a maximum of 240 hours over a six month period) and to abide by conditions set by the judge.
It is a nonresidential program that, for many offenders, can provide an alternative to a custodial
sentence. It can be designed to address the particular circumstances of the young person. For
example, it could be focused on specific times and days when a young person is unsupervised and
tends to violate the law. As with intensive support and supervision programs, federal-provincial
cost sharing agreements for the YCJAs implementation specifically identify attendance programs
as one of the high priority areas in which provinces are able to receive additional federal funding.
A pilot attendance centre program in Ontario, funded by the federal government, has been well
received by youth court judges and has reported considerable success with youth referred by the
court.
The use of this sentencing option with an offender can occur only if the provincial director has
determined that an attendance order program is available. Provinces and territories may decide
not to make this option available to the court by deciding not to implement this provision of the
YCJA. If the option is not available, the court may be able to achieve a similar result through a
probation order by attaching conditions that require the young person to attend a program in the
community
The YCJA clearly reflects a strong preference for non-custodial sentences wherever possible. The
preamble to the YCJA states that the youth justice system should reserve its most serious
intervention for the most serious crimes and reduce the over-reliance on incarceration for non-
violent young persons. Sentencing principles emphasize the requirement of proportionality in
sentencing and, within the limits of proportionality, the requirements of the least restrictive
alternative and the promotion of rehabilitation and reintegration. The restrictions on custody in
section 39 prohibit custody in many cases and require a thorough exploration of alternatives to
custody in cases in which custody is not prohibited. If the court decides to impose custody, the
court must justify its decision by including in its reasons for decision an explanation of why a
non-custodial sentence was not adequate to hold the young person accountable.
There are five sentencing options in the YCJA that allow the court to impose a sentence that
includes custody:
Deferred Custody and Supervision (para. 42(2)(p))
If a young person is found guilty of an offence that is not a serious violent offence, the court may
impose the new sentencing option of deferred custody and supervision if it is consistent with the
purpose and principles of sentencing and the restrictions on custody in section 39 (ss. 42(2)-(5)).
Although the young person serves the sentence in the community on conditions, it should be
considered, for most purposes, a type of custodial sentence because a breach of a condition can
result in the young person serving the remainder of the sentence as a custody and supervision
order.
A deferred custody and supervision order may be for a specified period that is less than six
months. During that time, the young person is in the community and must follow conditions set
by the youth justice court judge. A breach of conditions may result in a modification of the
conditions. It is also possible for a young person who breaches the conditions to be ordered to
serve the remaining time as a custody and supervision order. (See the Custody and Supervision
module for a discussion of the enforcement procedure in the event of a breach of a condition.)
Custody and Supervision Orders (para. 42(2)(n),(o), (q) and (r))
Unlike the YOA, the YCJA provides that all custody orders include a period of supervision in the
community. The purpose of the community supervision portion is to ensure appropriate
supervision and support for the young person during the transition from custody back to his or her
community.
The YCJA contains a list of mandatory conditions that apply to all young persons while under
supervision in the community. Additional conditions can be imposed to support the young person
and address his or her needs, as well as manage risk. If a young person breaches a condition while
under supervision in the community, reviews will be held that can result in a change in conditions
or in the young person being returned to custody.
It is also possible that a young person may not serve a portion of the sentence in the community
following custody. Before the start of the community portion, the court can require the young
person to remain in custody if the court is satisfied that there are reasonable grounds to believe
that a young person will commit an offence causing death or serious harm before the end of the
sentence.
The possible overall length of custody and supervision orders, the possible length of the
community portion of the order, and the enforcement procedure in the event of a breach vary,
depending on the offence. (See the Custody and Supervision module for a discussion of
enforcement procedures in the event of a breach of a condition.)
Most offences: The maximum length of the custody and supervision order for most offences is
two or three years, depending on the offence. The two-year maximum applies to all offences
except offences for which an adult would be liable to life imprisonment. These latter offences,
other than murder, can result in a maximum youth sentence of three years. The period of
community supervision is one half the length of the custody period (para. 42(2)(n)).
Attempted murder, manslaughter, and aggravated sexual assault: The maximum overall
length of the custody and supervision order for the offences of attempted murder, manslaughter,
and aggravated sexual assault is three years because these are offences for which an adult would
be liable to life imprisonment.
Under paragraph 42(2)(o), the period of conditional supervision is set by the court and, therefore,
is not necessarily one half the length of the custody period. This provides the court added
flexibility to tailor sentences imposed for these particularly serious offences. If the young person
breaches a condition, the provincial director may bring the young person back into custody.
The court is not required to impose a sentence under paragraph 42(2)(o) for these offences. The
court may decide to impose any other sentence under subsection 42(2).
Murder: The offence of murder is the only offence under the Act that must result in a custody
and supervision order. The maximum length of the order is ten years for first-degree murder and
seven years for second-degree murder. As with other presumptive offences, the period of
conditional supervision is set by the court and, therefore, is not necessarily one half the length of
the custody period.
Intensive Rehabilitative Custody and Supervision Order (para. (42(2)(r))
The intensive rehabilitative custody and supervision order is a new special youth sentence
intended to provide treatment for serious violent offenders. The order may be made if the court
determines that the following criteria are met:
the young person has been found guilty of murder, attempted murder, manslaughter,
aggravated sexual assault, or a third serious violent offence (para. 42(7)(a));
the young person is suffering from a mental or psychological disorder (para. 42(7)(b));
an individualized treatment plan for the young person has been developed (para. 42(7)(c));
and
the provincial director has determined that an intensive rehabilitative custody and supervision
program is available and the young persons participation is appropriate (para. 42(7)(d)).
Special federal funding for provinces and territories has been set aside to ensure that this
sentencing option can be available throughout the country. This special treatment sentence offers
a significant new option in the youth justice system for serious violent young offenders who
otherwise might receive an adult sentence. This order is not available if an adult sentence is
ordered.
The order is not limited to young persons who are fourteen to seventeen years of age. The court
may order a twelve or thirteen year-old into intensive rehabilitative custody and supervision, if
the criteria are met.
The YCJA provides in subsection 42(8) that this order does not abrogate or derogate from the
rights of a young person regarding consent to physical or mental health treatment or care. The
young persons right to consent to or refuse such treatment under common law or provincial
legislation must be respected.
The maximum length of the order depends on the offence committed. The overall maximum
lengths for the offences listed in paragraph 42(7)(a) are the same as the overall maximum lengths
for the ordinary custody and supervision order, discussed above.
NOTES: Whats wrong with this picture?
ADMISSIBILITY OF STATEMENTS BY YOUNG PERSONS
Reference: Admissibility of Statements, Admissions and
Confessions
No oral or written statement made by a young person to a person
in authority, upon arrest or detention, or upon the person in
authority having reasonable grounds to believe that the young
person has committed an offence is admissible against the young
person unless the statement is voluntary (para. 146(2)(a)) and
meets the following conditions:
Before the statement, the person in authority explained that
the young person is under no obligation to make a
statement;
the statement may be used as evidence against the young
person;
the young person has the right to consult counsel and a
parent; and
the statement must be made in the presence of counsel and
anyone else consulted by the young person (para. 146(2)(b)).
Before the statement, the young person was provided with a
reasonable opportunity to consult counsel and a parent or any
other appropriate adult who was not a co-accused or under
investigation for the same offence (para. 146(2)(c)).
If the young person consulted counsel, a parent or another
person, the young person was given an opportunity to make the
statement in the presence of the person or persons consulted
(para. 146(2)(d)).
The conditions in paragraphs 146(2)(b) to (d) do not apply for oral
statements made spontaneously to a person in authority before
that person has had the opportunity to comply with those
requirements(ss. 146(3)). If the young person is cautioned as
required by paragraph 146(2)(b), he or she may waive his or her
rights under paragraphs 146(2)(c) and (d), but the waiver must be
recorded or written in a signed statement (para. 146(4)). The young
persons waiver may be accepted without recording or a signed
statement if the youth justice court is satisfied that the young
person was informed of his or her rights and voluntarily waived
them (ss. 146(5)).
3.21
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The youth justice court may admit into evidence a statement taken
despite a technical irregularity incomplying with paragraphs
146(2)(b) to (d), if the court is satisfied that admitting the statement
would not bring into disrepute the principle that young persons are
entitled to enhanced procedural protection to ensure that they are
treated fairly and their rights are protected (ss. 146(6)).
If a young person satisfies the judge that a statement was made
under duress imposed by any person who is not a person in
authority, then the youth justice court judge may rule that the
statement is not admissible (ss. 146(7)).
The youth justice court judge may admit a statement or waiver if,
at the time of making the statement:
The young person represented himself or herself as being 18
years old or older.
The person to whom the young person made the statement or
waiver made reasonable inquiries as tothe young persons age
and had reasonable grounds to believe he or she was 18 years
old or older.
In all other circumstances the statement or waiver would
otherwise be admissible (ss. 146(8)).
A statement made by a young person during a medical or
psychological assessment is inadmissible asevidence in a youth
justice court unless the young person consents. Such a statement
is admissible for thepurposes of
making a decision as to whether an adult or youth sentence is
to be applied;
determining a young persons fitness to stand trial;
determining the young persons state of mind during the
commission of an alleged offence;
challenging the credibility of the young person or establishing
the young persons perjury;
3.22
SECTION 4
THE CASE OF ROBERTA HILL
Conferences, Victim Services,
Referrals to Child Welfare,
Pre-trial detention
Section 4: The Case of Roberta Hill 4.1
4.2 Section 4: The Case of Roberta Hill
Conferences
Conferences are defined as:
A group of people brought
together to give advice to police
officers, judges, justices of the
peace, prosecutors, provincial
directors and youth workers who
are required to make decisions
under the Act.
Conferences
A conference could give
advice on decisions such as:
- appropriate extrajudicial measures
- conditions for release from
pre-trial detention
- sentences and reviews of sentences
- plans for reintegrating the young
person into the community
Conferences
Case Conference
- to develop a plan for the youth
Restorative Justice Conference
- allows the YP to meet with the
victim and community to develop a
plan to repair the harm caused by
the offence
Assessments
Court can order a medical,
psychological or psychiatric report
when they believe:
- the YP is suffering
from a medical or mental illness
- the YP has a history of repeated
findings of guilt
- in the case of a serious violent
offence
Victims
Some provisions which recognize
victims include:
- victim impact statement
- victims are acknowledged
in the prinicples section
- victims are informed of
extrajudicial sanctions upon request
- victims may request access to
records
Referral to Child Welfare
Referrals can be made at
any stage of proceedings, by a
Judge, for assessment to
determine if the YP is in
need of child welfare services
Pre-trial Detention
q Presumption that detention is not
necessary if YP could not receive a
custodial sentence if found guilty,
because of the restrictions on the
use of custody in the YCJA
q cannot be used as a substitute for
appropriate child protection, mental
health or other social measures
NOTES: Playing the Part
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YCJA Explained Conferences : Introduction
Conferences
In many parts of Canada, there has been an increasing use of conferences to assist in making
decisions regarding young persons who are involved in the youth justice system. In general,
conference refers to various types of processes in which affected or interested parties come
together to provide advice to decision makers in specific youth justice cases. Conferences were
not referred to or authorized in the Young Offenders Act, but are an explicit part of the youth
criminal justice system as envisioned by the Youth Criminal Justice Act (YCJA).
Operation and Purpose of Conferences
Conferences generally operate in an informal manner. They can take the form of family group
conferences, community accountability panels, sentencing circles and inter-agency case
conferences. Conferences provide an opportunity for a wider range of perspectives on a case,
more creative solutions, better coordination of services, and increased involvement of the victim
and other community members in the youth criminal justice system.
Youth Justice Committees
Youth justice committees are also defined in the YCJA, where one of their functions is
specifically to act as a conference.
Canada Canada
YCJA Explained Conferences; Summary Diagram
YCJA, SS. 18-19

Canada Canada
YCJA Explained Conferences : Explanatory Text
Conferences
Uses for Conferences
Participants in Conferences
Times When a Conference May Be Appropriate
New Provisions for Conferences
The YCJA explicitly provides new provisions for conferences. The Act defines a conference as a
group of persons who are convened to give information in accordance with section 19 of the
YCJA. Section 19, in turn, provides stipulations on who may call conferences, and the purposes
and rules for conferences.
Who May Call a Conference
A conference can be convened by a youth justice court judge, the provincial director, a police
officer, a justice of the peace, a prosecutor or a youth worker for the purpose of making a decision
under the Act (ss. 19(1)).
Purpose of a Conference
Conferences may be convened, among other things, to give advice on appropriate extrajudicial
measures, conditions for judicial interim release, sentences, including the review of sentences,
and reintegration plans (ss. 19(2)).
Rules Governing Conferences
With respect to conferences other than those convened by judges or justices of the peace,
jurisdictions can establish rules for convening and conducting conferences. If such rules are
established by a jurisdiction, conferences to which the rules apply must be convened and
conducted accordingly (ss. 19(3)). Where jurisdictions do not establish rules, then the uses and
range of conferences could be extremely broad, provided that the principles of the YCJA are
complied with.
NOTES: To release or not to release...
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YCJA Explained Pre-trial Detention : Introduction
Pre-trial Detention
A key objective of the Youth Criminal Justice Act (YCJA) is to reduce the incarceration of youth
at the pre-trial stage of the youth justice process. Recent studies indicate that there has been a
substantial increase in the use of pre-trial detention under the Young Offenders Act (YOA). There
is also evidence of significant variation among provinces and territories in the use of pre-trial
detention. This increased use of pre-trial detention and the negative consequences for youth
highlight the need for restraint in the use of pre-trial detention.
Basic Principle
It is important to remember that a young person who is held in pre-trial detention is presumed to
be innocent. The presumption of innocence reinforces the basic principle that pre-trial detention
should not be used unless it is the least restrictive alternative. It also underlies the clear decisions
of courts that pre-trial detention is not be used to punish the young person.
Negative Consequences
Although pre-trial detention is not to be used as punishment, decision-makers police,
prosecutors, youth court judges and justices of the peace need to be aware of the negative
consequences for the young person who is detained. These include a major deprivation of liberty
and a disruption of education, employment, family life, and social and community involvement.
In addition, research indicates that the detention of the young person increases his or her chances
of being found guilty of the offence and sentenced to custody if found guilty.
New Provisions
The YCJA provides new provisions that restrict the use of pre-trial detention and encourage the
use of alternatives, including:
a prohibition on the use of detention as a substitute for child welfare, mental health or other
social measures;
a presumption against the use of detention if the young person could not be sentenced to
custody if found guilty of the offence; and
a requirement that the judge inquire about the possible availability of a responsible person
to provide an alternative to detaining the young person.
Extensive use of pre-trial detention also raises the question of whether limited youth justice
resources are being used appropriately and whether enough resources are being used to provide
alternatives to detention. As part of the implementation of the YCJA, additional federal funds are
available to the provinces to provide alternatives that would reduce the reliance on detention and
avoid some of the negative consequences experienced by detained youth.
YCJA Explained Pre-Trial Detention : Checklist
Pre-Trial Detention
Checklist for Judicial Interim Release
(YCJA, s. 29-31; CC, s. 515)
1. Has the youth received notice of his or her right to counsel and been afforded effective access
to counsel (ss. 25(3))?
2. What attention is being paid to the importance of ensuring timeliness in determining this
matter (subpara. 3(1)(b)(iv) and (v))?
3. Have the youths parents or family been notified?
4. In case it might subsequently appear that the youth would be otherwise detained:
Is there an agency who could provide care?
Have any steps been taken, especially in relation to reverse onus offences, to ascertain if
there is a person willing to act as a responsible person?
5. Is the onus on the crown or on the youth to show cause why he or she should be detained or
released (CC, s. 515)?
6. If the onus is on the crown to show cause why the youth should be detained, would the crown
consent to releasing the youth?
7. If crown does not consent to release, and the crown seeks to show cause why the youth
should be detained, or the youth seeks to show cause why he or she should be released, on
what ground should the court decide whether the youth should be detained or not?
Grounds for pre-trial detention or release
The prohibition contained in YCJA, subsection 29(1), against using detention as a social measure
applies to all grounds for detention.
Criminal Code Ground YCJA, SS. 29(2) Presumption
To ensure attendance in court (CC, para. 515(10)(a). Not applicable to this ground.
For public protection or safety reasons (CC,
para. 515(10)(b).
Could the youth, if convicted, be committed to
custody under YCJA, para. 39(1)(a)(b) or (c)? If not,
detention should not be considered.
For any other just cause (CC, para. 515(10)(c)). Not applicable to this ground.
8. If the court determines to release the youth, has a case been made out for attaching conditions
to the order? Do these conditions address the grounds set out in the Criminal Code,
subsection 515(10)? Can they be justified as both a reasonable and necessary restriction on
the youths liberty?
9. If the court is satisfied that grounds exist to detain the youth in custody, it must inquire about
the availability of a responsible person (ss. 31(2)). Is there a responsible person available and
is the young person willing to be placed in the care of that person?
How can defence counsel, youth, family or community agencies assist the court in this
respect?
Canada Canada
YCJA Explained Pre-Trial Detention : Checklist
What challenges and obligations will arise in fulfilling the arrangement and what skills
and circumstances would be helpful?
10. Where the court has ordered detention, has it set out its reasons for detention?
11. If the court finds there are grounds to justify detention and there is no alternative to
placement on detention and no responsible person available to undertake care of the youth,
the court may order temporary detention of the youth. The youth may only be detained in a
facility where he or she is kept separate and apart from adults, unless certain circumstances
exist that may require the court to consider temporary placement in adult facilities. Do any of
the following circumstances exist?
If the court is satisfied, having regard to the best interests of the young person, that the
young person cannot, having regard to his or her own safety or the safety of others, be
detained in a place of detention for young persons; or
If the court is satisfied having regard to the best interests of the young person, that no
place of detention for young persons is available within a reasonable distance (ss. 30(3)).
Canada Canada
YCJA Explained Detention before Sentencing; Flow Chart 1
S

Canada Canada
YCJA Explained Detention before Sentencing; Flow Chart 2

NOTES: Considering the victims
SECTION 5
THE CASE OF JEAN MARQUETTE
Adult Sentences, IRCS (intensive
rehabilitative custody and
supervision), Pre-sentence reports,
Reintegration, Publication
Section 5: The Case of Jean Marquette 5.1
5.2 Section 5: The Case of Jean Marquette
Presumptive Offences
Offences for which there is
an adult sentence persumed are:
First and second degree murder
Attempted murder
Manslaughter
Aggravated sexual assault
Third serious violent offence
Serious Violent Offence
A serious violent offence is an
offence during which a young
person causes or attempts to
cause serious bodily harm.
Third Serious
Violent Offence:
Criteria for Presumption
First:
YP has committed a serious
violent offence for which an
adult is liable to imprisonment
for more than two years
Second:
The third serious violent
offence occurred after the Act came
into effect
Third:
At the time of the offence the YP
had reached age of presumption
(14 16 years)
Fourth:
At the time of the offence at least
two prior judicial
determinations of serious
violent offence were made at
different proceeding
Presumptive Offences
q YP applies for youth sentence
q onus on YP to show why an adult
sentence should not be imposed
Non-presumptive Offence
Indictable offences for which
an adult could receive a sentence
of imprisonment of more than
2 years but not a presumptive
offence
Non-presumptive Offence
- Crown makes application
- Crown provides notice to court
and YP
- Onus on the Crown to show
why YP should receive an
adult sentence
Test for an Adult Sentence
Would a youth sentence be long
enough to hold the YP accountable?
If yesyouth sentence
If noadult sentence
Pre-sentence Reports
Pre-disposition reports are now
pre-sentence reports.
Only the information relevant to
the purpose and principles of
sentencing and the restrictions on
custody are to be included in the
report.
New Requirements for PSR
The recommendation of any
conference
Information that may assist the
court to determine whether there
is an alternative to custody
The YCJA expressly says that
Extrajudicial Sanctions can only be
included during the disclosure
periods
Planning for Reintegration
q Youth worker helps the YP in the
preparation and implementation
of a reintegration plan that sets
out the most effective programs for
the YP that maximizes the chances
of successful reintegration into the
community.
q The youth worker then
supervises, supports and assists the
YP to implement the plan in the
community
Supervision
in the Community
If conditions are breached, the YP
can be returned to custody
In the case of presumptive offences,
the judge sets both the period of
conditional supervision and the
conditions. For the usual two-thirds,
one-third, the court sets mandatory
conditions but the provincial
director can also add other
conditions to the order.
Publication
Permitted where:
q YP receives an adult sentence
q YP receives a youth sentence for
a presumptive offence unless a Judge
orders otherwise
q Emergency publication time
period increased from two to five
days
Publication Prohibited
q in all other cases; and
q where Crown does not seek an
adult sentence for a presumptive
offence
Q & A EXERCISE
1 What are Jeans chances of having an
adult sentence imposed?
2 Is an IRCS sentence appropriate in
Jeans case?
3 Under what conditions can Jeans
identity be published?
Pocket Guide
pp. 42, 48 and 49
Pocket Guide
pp. 32 to 34
Pocket Guide
pp. 100 to 101
4 What are the steps of release planning
for Jean?
What might be the role of the
Restorative Justice Program in helping Jean
return to the community?
5 If Jean were to be released to
supervision in the community, would there
be additional conditions set and who would
set those?
6 If Jean were to breach a condition, what
would be the procedure and what would be
the likely result?
Pocket Guide p. 66
Pocket Guide
pp. 74 to 75
Pocket Guide
pp. 86 to 88
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YCJA Explained Adult Sentences : Introduction
Adult Sentences
For nearly 100 years the law allowed young persons who are 14 years of age or older to be
transferred to the adult court under certain circumstances and, if convicted there, receive an adult
sentence. Under the Young Offenders Act (YOA), if a 16 or 17-year-old was charged with murder,
attempted murder, manslaughter or aggravated sexual assault, it was presumed that an adult
sentence would be applied, unless the young person could persuade the court that it should not.
Experience Under the YOA
Experience with the regime under the YOA has shown that:
Relatively few young persons were transferred to the adult court.
A large percentage of the transfers to adult court were for non-violent offences.
Provinces vary considerably in the number of transfers to adult court.
The transfer hearing was complex and caused significant delays. It was considered unfair
because it took place before it had even been determined that the youth was guilty. Youth lost
access to the procedural protections appropriate to youth and specially provided during the
youth judicial process.
Changes Made by the YCJA
The Youth Criminal Justice Act (YCJA) has eliminated the transfer hearing to adult court and the
anomalies associated with it. Consideration of whether an adult sentence is warranted only takes
place after a finding of guilt and there are enhanced protections and notice requirements
throughout the process to ensure that the youths rights are fully safeguarded.
The YCJA does not lower the age at which a young person may be subject to an adult sentence.
While the age at which the presumption of an adult sentence applies is lowered to 14,
jurisdictions have the authority to set the age at 15 or 16. The effect is that if a province chooses
to set the age at 16, there would be no change from the YOA.
Guidance in Applying Adult Sentences
While youth still remain at risk, under certain limited circumstances, to the longer terms and the
characteristics of adult sentences that are less appropriate to youth, new sentencing principles
provide guidance to assist in ensuring that this exception to the youth sentencing regime is strictly
focused on appropriate cases. The test for an adult sentence limits its use to cases where it can be
demonstrated that a youth sentence would not be of sufficient length to hold the young person
accountable, bearing in mind that the accountability of the young person must be consistent with
the greater dependency of young persons and their reduced level of maturity.
A young person under age 18 who receives an adult sentence is to be placed in a youth facility
unless it would not be in the best interests of the young person or would jeopardize the safety of
others.
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YCJA Explained Adult Sentences : Explanatory Text
Adult Sentences
Background
Overview of the YCJA Regime
Process Prior to Trial
Trial Process
Sentencing Stage: Features of the Process
Sentencing Stage: Determining the Sentence
Process Following Sentencing
Introduction
Young persons who have been arrested and charged with an offence may, in certain
circumstances, be at risk of receiving an adult sentence if they are found guilty. For this situation
to arise, the offence must have been one that would attract a penalty of more than two years if
committed by an adult and the young person must have been alleged to have committed it when
fourteen years or older. Of the offences that could fall into this category, some may carry a
presumption that an adult sentence would apply on conviction, unless the youth can persuade the
court that it is not necessary. The presumption does not mean that there will be an automatic adult
sentence. It means that the young person must persuade the court that he or she should receive a
youth sentence. With respect to the remainder of the offences in the category, the burden is on the
crown not only to apply to the court for an adult sentence to be considered but also to demonstrate
to the court that it is necessary
Background
History
For nearly 100 years, under both the Juvenile Delinquents Act and the Young Offenders Act
(YOA), the law allowed young persons who are 14 years of age or older to be transferred to the
adult court under certain circumstances. If the young person was then convicted in adult court, the
court could impose an adult sentence. Under the YOA, if a 16 or 17-year-old was charged with
murder, attempted murder, manslaughter or aggravated sexual assault, it was presumed that he or
she would be transferred to the adult court and, if convicted, he or she would receive an adult
sentence. This meant that in relation to those offences, the young person had to persuade the court
that he or she should remain in youth court.
Experience with the regime under the YOA has shown that:
Relatively few young persons are transferred to the adult court. (See Types of Cases
Transferred to Adult Court.)
A large percentage of the transfers to adult court are for non-violent offences. For example, in
the last three years, about 40% of the transfers were for non-violent offences. (See Types of
Cases Transferred to Adult Court.)
Provinces vary considerably in the number of transfers to adult court. For example, in 1998-
99, Manitoba led the country with 29 transfers. Quebec was next highest with 23 transfers
which was nearly four times the number in Ontario (6 transfers) and more than twice the
number in British Columbia (11 transfers). (See Number of Youth Transfers to Adult Courts.)
The transfer hearing can be complex and can cause significant delays. Many consider it to be
unfair because it takes place before a court has determined whether or not the young person is
guilty of the offence.
Youth lose access to the youth-appropriate procedural protections provided during the youth
judicial process.
The YCJA: Changes Relating to Adult Sentences
Changes included in the Youth Criminal Justice Act (YCJA) have eliminated the anomalies
associated with the transfer hearing to adult court in the YOA. While youth still remain at risk,
under certain limited circumstances, to the longer terms and less youth-appropriate characteristics
of adult sentences, new sentencing principles provide guidance to assist in ensuring that this
exception to the youth sentencing regime is strictly focused on appropriate cases.
The YCJA does not lower the age at which a young person may be subject to an adult sentence.
The YCJA does contain some significant changes regarding adult sentencing:
The transfer process is eliminated. Instead, the youth court first determines whether or not the
young person is guilty of the offence and then, under certain circumstances, the youth court
may impose an adult sentence.[1]
A pattern of repeated, serious violent offences is added to the list of offences that give rise to
the presumption of an adult sentence.
The age at which the presumption of an adult sentence applies is lowered to 14. However,
provinces have the authority to set the age at 15 or 16. The effect is that if a province chooses
to set the age at 16, there would be no change from the YOA.
If the Crown notifies the youth court that it will not be seeking an adult sentence for a
presumptive offence, the court must impose a youth sentence.
The test for an adult sentence requires the court to determine whether a youth sentence would
be of sufficient length to hold the young person accountable. The accountability of the young
person must be consistent with the greater dependency of young persons and their reduced
level of maturity. If a youth sentence would be of sufficient length to hold the young person
accountable, the court must impose a youth sentence.
A young person under age 18 who receives an adult sentence is to be placed in a youth
facility unless it would not be in the best interests of the young person or would jeopardize
the safety of others.
These changes in the YCJA set out two clear objectives with respect to decision- making
surrounding a youths liability to an adult sentence. First, it requires that the consideration of
whether an adult sentence is necessary be based on the sufficiency of the length of the sentence to
achieve a fair and proportionate accountability appropriate to a youthful offender. Second, it
stipulates that the youths potential liability to an adult sentence is subject to a full range of
enhanced procedural protections.
Adult sentences are a heavy-handed tool among the array of measures available to hold a young
person accountable for his or her criminal conduct. Parliament has made them available in
relation to youth, but it is clear in the YCJA that this is an exception to the purpose, principles and
content of the youth sentencing regime which is at the heart of the legislation. Parliament has set
the youth sentencing regime as the standard most appropriate for youth who have been found
guilty of criminal conduct. This regime includes sentences that are directly focused to respond to
serious and violent conduct when committed by youth, such as the new intensive rehabilitative
custody and supervision order. Youth receiving adult sentences are deprived of access to such
sentences designed specifically to respond to the problems of severely troubled youth.
Any departure from the youth sentencing regime, as in the limited case of adult sentences, must
follow a rigorous examination of the necessity to extend sentence length in rare cases where
the gravity of the conduct is so severe and the youths responsibility for it so extensive that only
an adult sentence would be sufficient to hold the youth accountable. When courts apply adult
sentences to youth they must do so sparingly and fairly. Their application must observe the fullest
procedural protections available and be strictly targeted to cases where it is demonstrably
necessary. This is particularly important in approaching applications for adult sentences for non-
presumptive offences, which are a manifest exception to the rule of separate youth penalties. It is
equally important as an approach to the presumptive offences. While the onus of rebutting this
presumption rests with the youth, the crown should be ready to demonstrate why the presumption
is justified in each particular case.
Overview of the YCJA Regime
When an Adult Sentence May Be Considered
Governing Principles
Categories of Offences that May Attract an Adult Sentence
When an Adult Sentence May Be Considered
Sections 61 to 81 of the Youth Criminal Justice Act (YCJA) describe the circumstances in which a
young person convicted of an offence may be subject to an adult penalty. An adult sentence will
not apply automatically, even when it is an available sanction; the YCJA sets out the procedures
to be followed in determining whether an adult sanction is appropriate and the test that must be
met in applying this extraordinary measure.
Section 62 sets out the circumstances in which a court may consider an adult sentence:
The youth must have been found guilty of an offence for which an adult could receive a
sentence of more than two years and
He or she must have been at least 14 years old at the time the offence was committed.
With respect to certain particularly serious offences, a presumption is created by the legislation
that an adult sentence will result following a finding of guilt. Sections 61 permits jurisdictions to
determine the age (14, 15 or 16) at which this presumption will begin to arise. With respect to all
other offences with a penalty of more than two years (for which no presumption arises), the
crown must apply to the court if it wishes an adult sentence to be considered. In either case, all
trials of young persons take place in youth court and, following a finding of guilt, the court is
required to determine whether an adult penalty is sought or opposed by the parties. The court will
do so by holding a hearing to assess whether a youth sentence would be of sufficient length to
hold the youth accountable for his or her conduct. Only if the court finds that a youth sentence
would not be sufficiently long may it go on to consider imposing an adult sentence.
Governing Principles
Informing the process are several statements of principle set out in the YCJA. Of particular
relevance are the statements of principle in section 3, which applies to the Act as a whole, and
section 38, which governs the imposition of youth sentences and is material to the consideration
of whether adult sentences are necessary.
Paragraph 3(1)(b) makes it clear that the youth justice system must be separate from that for
adults and emphasize a fair and proportionate accountability consistent with the greater
dependency of young persons and their reduced level of maturity. It stresses the need for
enhanced procedural protection to ensure fair treatment and the protection of youths rights, the
importance of rehabilitation and reintegration as well as the need for timeliness of intervention in
order to reinforce the link between the offending behaviour and its consequences.
Paragraph 3(1)(c) reinforces the requirement for fair and proportionate accountability and
describes the goals to be achieved when taking measures against youth.
Section 38 principles set out guidance for determining a fair and proportionate youth sentence.
These determine how the court will determine the quantum of youth sentence that would hold a
youth accountable and provide guidance on objectives the court should bear in mind in
structuring the content of the sentence. This guidance is key to the question of determining
whether a youth sentence would be of sufficient length to hold a young person accountable.
Categories of Offences that May Attract an Adult Sentence
A youth could be liable for an adult sentence if convicted of an offence for which an adult could
receive a sentence of more than two years. Within this offence range, the youths liability and the
process to be followed vary according to the nature or type of offence. These variations fall into
three groups:
Presumptive a Offences: Specified Offences (murder, attempted murder, manslaughter,
aggravated sexual assault)
In the case of young persons charged with one of the four presumptive offences named in
subsection 2(1), presumptive offence, paragraph (a) (murder, attempted murder,
manslaughter or aggravated sexual assault), it is presumed that an adult sentence will apply.
These offences are those that attracted an adult penalty under the YOA; no changes have been
made to this list of specified offences. Under section 61, jurisdictions may leave the age at
which this presumption arises at 16 or may set it at 14 or 15 years of age.
Presumptive b Offences: Repeat Serious Violent Offence
When a youth with a history of violent activity is charged with an offence involving serious
violence, a presumption of adult sentence may apply. This will happen in cases where on at
least two prior occasions the youth has been found guilty of an offence involving violence
and a court has made a judicial determination in each case that the offence is a serious violent
offence. This is a new category of offences to which a presumption in favour of an adult
sentence has been attached by the YCJA, subsection 2(1), presumptive offence, paragraph
(b). It is intended to permit the court to respond with a consideration of the necessity for a
lengthier sentence in cases of repeated, serious violent offenders beyond those found guilty of
an offence enumerated in subsection 2(1), presumptive offence, paragraph (a). Again,
under section 61, jurisdictions may leave the age at which this presumption arises at 16 or
they may set it at 14 or 15 years of age.
Non-presumptive Offences
In addition to offences that may qualify as presumptive offences, as described above, there is
a range of offences for which no presumption arises but for which the crown may apply to the
court to consider an adult penalty. These are offences for which an adult could receive a
sentence of more than two years that were committed by a youth when 14 years of age or
older.
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Process Prior to Trial
Presumptive A Offences
Presumptive B Offences
In cases where a youth is at risk for an adult sentence, the YCJA ensures that the youth has access
to a range of procedural protections from the outset of the process. The youth is entitled to know
what he or she may be liable to following a finding of guilt. Certain obligations arise on the part
of the court and crown to make sure this happens.
With respect to presumptive a offences, the crown is not required to make an application to the
court for an adult sentence nor to give notice that it intends to seek one. To ensure that the youth
is aware, at the earliest possible opportunity, of the penalty he or she may face if charged with
one of these four offences, the court is required, under paragraph 32(1)(d), to inform the youth at
the his or her first appearance, that an adult sentence will apply if the youth is found guilty, unless
the court orders that a youth sentence should be imposed.
When charged with a presumptive a offence, the youth has the option, under section 63, to
apply to the court for an order that a youth sentence would be imposed instead of an adult
sentence. The youth may do this at any time prior to sentencing. The court will consider this
application as it proceeds to determine sentence, unless the crown has already indicated a
willingness to forgo seeking an adult sentence. The crown may decide to do this by giving notice
that it will not oppose the youths application under section 63, in which case the court is required
to order that a youth sentence would be imposed.
Even where a youth has not made an application for a youth sentence, under section 65, the
crown may choose not to pursue an adult sentence for a presumptive a offence. To do so, it
gives notice to that effect to the court, which it may do at any stage of the proceedings. If this
notice is unopposed by the youth, the court must order that a youth sentence would apply on
conviction and that there will be a ban on publication of information about the youth.
For a presumption to arise under subsection 2(1), presumptive offence, paragraph (b), the
crown must apply to the court under subsection 42(9) for the opportunity to establish that the
offence of which the youth has just been found guilty is a serious violent offence. Where the
youth already has had at least two such prior judicial determinations relating to other serious
violent offences for which he or she has been found guilty, a presumption may arise under section
2(b). Similar age restrictions apply to the operation of this presumption as they do to presumptive
a offences. For an adult sentence to be possible, the offence must have been committed when
the youth was 14 years or older and, for the presumption to attach to it, must have been
committed within the relevant age range set by the jurisdiction.
However, the courts ability to designate offences as serious violent offences under section 42(9)
is not subject to these age restrictions. As long as the offence was committed when the young
person was at least twelve years of age or older, the crown may request the offence be designated
as a serious violent offence. If the court does so, this could then count as one of the prior
designations needed to fulfill the requirements of a subsequent presumptive b application.
The crown makes the application for a designation after there has been a finding of guilt. In order
to have the court consider this request, the crown must already have given notice, under
subsection 64(2), to the youth and the court, prior to the youths making a plea,[2] that it intends
to seek an adult sentence. When the court receives this notice, it must inform the youth at his or
her first appearance that an adult sentence may apply on conviction (para. 32(1)(c)). The crown
must also give the youth, but not the court in this instance, notice under subsection 64(4),[3] that it
intends to ask the court to make a determination that the conduct constitutes a serious violent
offence and it intends to establish that this at least the third such determination made in respect of
the youths conduct.
As with presumptive a offences, a youth charged with an offence that may be found to be a
presumptive b offence has the option, under section 63, to apply to the court for an order that a
youth sentence would be imposed on a finding of guilt instead of an adult sentence. The youth
may do this at any time prior to sentencing. The crown may decide not to oppose the youths
application, in which case the court is required to order that a youth sentence would be imposed.
The crown must give notice under subsection 64(2) to the youth and the court, prior to the youths
making a plea,[4] that it intends to seek an adult sentence. When it has received such a notice, the
court is required, under paragraph 32(1)(c), at the youths first appearance before it, to inform the
youth that an adult sentence may apply on conviction. The youth may, under subsection 64(5),
give notice that he or she does not oppose the crowns application for an adult sentence. In this
case, the court must order that an adult sentence would be imposed.
Trial Process
Electing Mode of Trial
All trials of young people now take place in youth court, whether a youth or an adult penalty is
sought. There is no transfer to adult court with its attendant delay, failure to provide the youth
with a process separate from the adult system and potential for unfairness, in exposing the youth
to an examination of penalty before a determination of guilt or innocence has begun.
Under the YOA, the process of transfer hearings to adult court led to unfairness and delay in the
treatment of youth. Excessive delay not only condemned the youth and other parties to
unnecessarily prolonged uncertainty in the resolution of the matter, but also diluted the potential
for meaningful consequences for the youth by creating distance between the conduct and its
consequences. Subjecting youth to trial in adult court rather than youth court, where procedural
protections are specifically tailored to the distinct requirements of youth, created unfairness and
disadvantage, for no purpose. Judging the nature of the conduct in order to determine the type
of penalty that would apply before the youth has undergone a trial to establish whether he or
she had any guilt in the matter, is inconsistent with the presumption of innocence and has
significant risk for prejudice in the subsequent trial proceedings.
The YCJA provides for a more appropriate, fair and useful process for determining when an adult
sentence is a necessary and justified option. All trials and sentencing are conducted separately
from the adult process, with youth appropriate protections clearly set out and applicable to youth.
The potential for timeliness in disposition is significantly increased. Unfairness resulting from a
pre-adjudication consideration of sentence is relieved. The YCJA provides for full procedural
protections and notices wherever a youth may be at risk for these extraordinary measures.
Electing Mode of Trial
Where an offence may attract a penalty, on conviction, of five years or more, the YCJA
guarantees the youths entitlement to elect his or her mode of trial, which is provided in the
Criminal Code. This is a recognition of rights guaranteed the youth (and all other accused) under
the Charter of Rights. The youth may choose between trial by judge or by judge and jury and may
opt to have a preliminary inquiry. This arises in the case of offences that carry adult penalties of
five years or more and in the case of murder whether an adult or youth penalty may apply
(s. 66, 67). Whatever mode of trial the young person selects, all trials take place in youth court.
Where the crown has indicated that it does not intend to seek an adult sentence and the court has
ordered that an adult sentence shall not apply, an election is not necessary as any resulting youth
sentence would be three years or less. There is one key exception to this rule, which arises in the
case of first or second degree murder, for which the youth could be sentenced to 10 and 7 years,
respectively. With respect to a possible youth sentence for one of these offences the court must
put the youth to an election as to how he or she wishes to be tried (s. 66).
Wherever entitled to elect mode of trial, the young person may elect between:
Trial by youth justice court judge without a jury
Trial by judge[5] without a jury following a preliminary inquiry
Trial by judge[6] and jury following a preliminary inquiry.
The judge reads the election to the young person before he or she makes a plea, explaining the
options for trial and asking the young person to select one. The judge may require co-accused
young persons to be tried by a court composed of a judge and jury. The crown may also require a
young person to be tried before a jury despite his or her having elected another mode.
Once the young person has elected a mode of trial before a judge or a judge and jury, the youth
court judge must hold a preliminary inquiry, conducted in accordance with procedure in Part
XVIII of the Criminal Code. Otherwise procedure at trials before a judge or a judge and jury
follows the Criminal Code, Parts XVIV and XX, except for special protections relating to privacy
and entitlement to counsel.
Sentencing Stage: Features of the Process
Following a finding of guilt, the court must proceed to consider the question of an appropriate
sentence. In so doing, it must ensure that the youths procedural protections are safeguarded and
that governing standards are applied to the question of sentence sufficiency. The court has access
to various sources of information in making its consideration of sentence. These may include
submissions from the parties, conference advice and various reports. The court is required, under
subsection 72(3), to consider a pre-sentence report.
With respect to presumptive a offences, the court needs first to ensure that the young person is
aware that an adult sentence will be imposed unless he or she makes an application for a youth
sentence. Under subsection 70(1), the court must ask the young person if he or she, knowing that
an adult sentence will apply, wishes to make an application for a youth sentence. If the young
person indicates that he or she does not want to make such an application, or fails to indicate
either way, the court must order that an adult sentence will be imposed.
Sentencing Standards
Under section 72, the court must consider whether a youth sentence, imposed in accordance with
subparagraph 3(1)(b)(ii) and the purpose and principles of youth sentencing set out in section 38
would be of sufficient length to hold the young person accountable for offending behaviour. The
court will also bear in mind the restrictions on custody set out in section 39.
The court may look at various factors, such as the seriousness and circumstances of the offence,
the age, maturity, character, background and previous record of the young person and may also
look at other factors that appear relevant to the court.
For more information, see the Youth Sentencing module.
Test for an Adult Sentence: Sufficient Length
In deciding what length is sufficient to hold youth accountable for their criminal conduct, the
court may consider, in certain circumstances, an adult sentence. Adult sentences, however, should
be used very sparingly in relation to youth. An adult sentence would be a clear exception to the
youth sentencing regime that Parliament has determined is appropriate and meaningful for youth
found guilty of a crime. It would mark a recognition of particularly serious conduct together with
a significant degree of responsibility on the part of the youth.
The process of applying for, considering and imposing adult sentences needs to be strictly
focused so that it is targeted on appropriate cases where it is clearly demonstrated that a youth
sentence, imposed in accordance with the YCJA is not sufficiently long to hold the youth
accountable. The YCJA makes it clear, in section 42, that these are appropriate and useful
maximum limits for youth sentences for these offences. In considering an adult sentence, judges
must ask themselves what factors render a youth sentence insufficiently long in the case before it
to hold the youth accountable. Crown prosecutors must indicate the compelling circumstances
that must exist before an adult sentence would be imposed. Defence counsel must be fully
prepared to participate in the challenge process attaching to any such applications or
presumptions. Subsection 72(1) sets out the conditions under which an adult sentence should be
imposed.
For more information, see the Youth Sentencing module.
The purpose of youth sentencing set out in section 38 aims at holding a young person accountable
through the imposition of just sanctions have meaningful consequences for the young person and
that promote his or her rehabilitation and reintegration into society. Subparagraph 3(1)(b)(ii)
makes it clear that with respect to sentencing youth this means recognizing that a different
standard of accountability applies than the one relating to adult offenders.
Seeking the sentence that will hold the youth accountable requires the court to work through the
framework of sentencing principles set out in subsection 38(2) and to take into account
sentencing factors in subsection 38(3). This measure of accountability should be objectively
based and consistently applied by courts so that it can be regarded as a fair and just exercise of
the states power to punish.
Having determined what would be an appropriate youth sentence, the court must then consider
whether there are factors in this case that would justify holding the youth to a more stringent
measure of accountability that the sentence is insufficiently long to accomplish this. Factors
set out in section 72 are comparable with factors already considered by the court by virtue of
subsection 38(3). These relate primarily to the seriousness of the conduct as well as the youths
degree of responsibility. The court will require compelling argument that these are so egregious
in this case to lead to a measure of accountability that is greater than the one contemplated within
the standards set out in section 72: the direction in subparagraph 3(1)(b)(ii) that youth
accountability should be less than that demanded from adults; how this direction is put into effect
by the youth sentencing standards set out in section 38; and the sentence lengths specified in
section 42.
Should an adult sentence be considered necessary, the application of these statutory principles in
calculating its length should result, at the least, in a sentence that is lighter than the average
sentence imposed on adults to acknowledge the youths greater dependence and reduced
maturity. Furthermore, exposing a youth to an adult sentence would deny that youth access to the
intensive rehabilitative custody and supervision order provided in paragraph 42(2)(r). This is a
sentence specifically designed to respond to the circumstances of extremely troubled youth who
have committed serious violent offences.
The measure of accountability may reflect, or confront, the youths own subjective view of what
he or she deserves. Efforts to achieve meaningful consequences for the youth will mean offering
him or her the opportunity to come to some understanding of what he has done. This
understanding must be based, first, in understanding that the conduct is proscribed and may be
punished by the state. The youth must also be permitted to realize, in a more specific sense, the
impact his conduct may have had on individuals who may have been affected by it, including, for
example, the victim, his family, the community and himself. This understanding must be based in
the length and content of the sentence imposed. The sentence should in effect be the courts
statement of why the youths conduct resulted in sanction and why a particular sanction was
chosen. From that understanding the youth should be able to recognize that he or she has the
responsibility, capacity and opportunity to refrain from such conduct in the future. Whether he or
she accepts that responsibility is ultimately up to the youth; the sentence imposed, however, must
offer it to the youth.
Imposing the Sentence
The court is to consider a pre-sentence report and to give the young person, his or parents and the
crown an opportunity to be heard. Should the court determine that a youth sentence, imposed
according to the youth sentencing principles set out in the YCJA is insufficiently long to hold the
youth accountable, it may then consider imposing an adult sentence Once the court has
determined the sentence it believes is sufficient to hold the youth accountable, it must then
impose the sentence. The court is to state the reasons for its decision. The decision for a youth or
adult sentence is considered part of the decision on the sentence for the purpose of an appeal.
Process Following Sentencing
Ban on Publication
Determining Placement
Conditional Release
Ban on Publication (S. 75)
When a young person receives an adult sentence, there is no ban on publication of information
that might identify him or her as having been dealt with under the YCJA. Where a young person
has received a youth sentence for a presumptive offence, the court is required to inquire whether
the youth or the Crown wants a ban on publication. If neither seeks a ban, publication will not be
prohibited. If the young person or the Crown apply for a ban on publication, the court must
decide whether it would be appropriate in the circumstances, taking into account the importance
of rehabilitating the young person as well as the public interest. For more information, see the
Publication and Records module.
Determining Placement (S. 76)
A youth receiving an adult sentence may be ordered to serve a custodial sentence in the youth
custody system, the adult provincial correctional system or the federal penitentiary system.
There is a presumption that those under eighteen should serve their sentence in a youth custody
system, whether that is a youth or an adult sentence. This presumption can be rebutted when the
youth is serving an adult sentence if placement in another custody system is seen as being in the
best interests of the young person or the safety of others. The presumptions are aimed at
separating youth from more hardened adult offenders, and are more consistent with the approach
of international conventions which call for youth to be held separate and apart from any adult
who is detained or held in custody.
When a person is eighteen or older at the time of sentencing, there is a presumption that he or she
will be placed in the provincial adult correctional system or, if the sentence is two years or more,
in a federal penitentiary. While the court sets the proportion of the sentence to be served in the
various systems, this is subject to a further presumption that no youth will remain in a youth
custody facility past the age of 20. A placement decision made by a court is subject to review.
Conditional Release (S. 77)
Rules governing adult conditional release apply to a young person who is serving an adult
sentence whether in a youth custody facility or in an adult facility. These rules governing adult
conditional release also apply to a young person who is serving a portion of an adult sentence in a
youth custody facility. The placement provisions for youth serving adult sentences operate as an
exception to the two year rule of section 743.1 of the Criminal Code. Youth with an adult
sentence who are placed in youth custody facilities for a portion or the entire period of their adult
sentence are treated in the same manner as adults with respect to conditional release.
Where a young person is serving an adult sentence in a youth custody facility it is important that
the youth does not fall between the cracks as might happen if the parole board is not aware of the
youth person. The provincial director is required to inform the appropriate parole board where a
young person sentenced as an adult is placed in a youth custody facility. The appropriate parole
board is required to exercise its jurisdiction in accordance with the Corrections and Conditional
Release Act. Which parole board has jurisdiction (either a provincial parole board or the National
Parole Board), is identified in accordance with that Act.
Where a person who is serving an adult sentence for a crime committed as a youth is then given
an adult sentence for a crime committed after reaching 18, the young person will serve the
remainder of the sentence in the adult system, in accordance with section 743.1 of the Criminal
Code.
A person serving an adult sentence who is then sentenced to an adult sentence under the Youth
Criminal Justice Act, will serve the sentences in a correctional facility for adults or a penitentiary
in accordance with section 743.1 of the Criminal Code.
[1] Under the YOA, a decision (following application or by presumption) is made before the trial whether adult
penalties should apply. The youth is then transferred to an ordinary court and the procedures and penalties applicable to
an adult apply to the young person. The new approach, recommended by the Federal/Provincial/Territorial Task Force
on Youth Justice (1996) and the Thirteenth Report of the Standing Committee on Justice and Legal Affairs (April
1997), is to leave the determination of whether an adult penalty is appropriate until after a finding of guilt has been
made.
[2] The crown may request leave of the court to file this notice after the youth has entered a plea, but only up to the
commencement of the trial.
[3] See footnote 2.
[4] See footnote 2.
[5] Judge as defined in section 13 of the YCJA.
[6] See footnote 5.
[7] This framework should also assist significantly in achieving greater consistency across Canada in the process of
seeking adult sentences for youth. There were wide variations across the country in seeking access to adult sentences
for youth: these relate to the numbers of applications that are made as well as to the types of offences that provoked
applications.
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Derogation from the General Principle Banning Publication
The key provision commences at subsection 110(1), headed Protection of Privacy of Young
Persons, with a general prohibition that no person shall publish the name of a young person, or
any other information related to a young person, if it would identify the young person as a young
person dealt with under this Act. The expression young person dealt with under this Act is
broad enough to capture a young person charged with or convicted of an offence, or under
investigation.
The provision then establishes exceptions to the general rule:
1. To correct the unfairness created by the publication rule under the YOA, under the YCJA the
identifying information cannot be published until a youth court had found the young person
guilty of the offence and imposed an adult sentence. The YCJA hence permits publication of
names of all young persons who have received an adult sentence for murder, attempted
murder, manslaughter, aggravated sexual assault or repeat violent offences or any other
criminal offences (para. 110(2)(a)).

2. Another exception concerns youth who have been convicted of a presumptive offence for
which an adult sentence has been sought,[1] but nevertheless received a youth sentence
(para. 110(2)(b)). However there are limitations to this exception. In such a case, section 75
provides for safeguards upon which the judicial discretion must be exercised, with a
requirement on the youth court judge, set in subsection 75(1), to inquire at the sentencing
hearing whether the young person or the Crown wishes to make an application for a ban on
publication.
Subsection 75(3) sets the criteria to be considered by the youth court to determine if it is
appropriate in the circumstances to order a ban on publication, taking into account the
importance of rehabilitating the young person and the public interest.
The test would be for the youth court judge to balance the public interest with the importance
of rehabilitating the youth (which, arguably, includes consideration of the psychological well-
being of the youth and reversibly, consideration of stigmatisation and harmful effects
publicity may have on a youth).[2]
Section 110 is addressed to the protection of the privacy of young person. It seeks to pay
deference both to the publics need for protection and to the goals of rehabilitation and
reintegration of youth in the community. Both the Preamble and the Declaration of Principle
of the Act inform the interpretation of the provision on the protection of the privacy rights of
youths in section 110 YCJA.
Paragraph 3(1)(a) of the Declaration states that one of the ways in which the public can be
protected is to rehabilitate youths and reintegrate them into society. Clearly, ensuring that the
anonymity of the youth is preserved will lessen the stigmatization of the youth by teachers,
peers, members of the community, and employers. It may ease the transition from
involvement with the criminal justice system to mainstream society. Paragraph 3(1)(b) also
states that enhanced procedural protection should be provided to young persons to ensure that
they are treated fairly, and that their rights, including their right to privacy, is protected.
Paragraph 3(1)(d) specifies that special considerations apply to proceedings against young
persons who should have special guarantees of their rights and freedoms.

Given the public interest in the rehabilitation of young person as recognized in case law[3]
YCJA Explained Publication and Records : Explanatory Text
and the principles sustaining the YCJA that emphasize rehabilitation and reintegration as the
core of extrajudicial and judicial interventions, it is likely that in very exceptional cases youth
court would permit publication of names.

3. The third exception to the general prohibition against publication is set in paragraph 110(2)(c)
in respect of publication of information that is made in the course of the administration of
justice, where it is not the purpose of the disclosure to make the information known in the
community. Similar provision was also contained in subsection 38(1.1) of the YOA. In a 2000
decision, the Supreme Court of Canada held that in the course of the administration of
justice could not be construed broad enough to capture disclosure of information that
would not otherwise be allowed under the Act (the sharing of information provisions).[4]

4. The next exception to the absolute ban on the publication of identities allows authorities to
seek public assistance in apprehending a suspect or a young person, who is unlawfully at
large, if the young person is dangerous.[5] The application could be made ex parte before a
youth justice court judge and the order will be operative only for a five-day period (ss. 110(4)
and (5)).

5. The last exception recognises that there are circumstances that may arise where someone who
has been dealt with under the YCJA or the YOA wishes to make that fact publicly known. The
provision, however, requires a court determination. This proceeding ensures that the principle
of special protection of the individuals right is respected in such circumstances. The
publication will be allowed only if the court is satisfied that the publication would not be
contrary either to the young persons best interests or the public interest (ss. 110(6)).
Subsection 110(3) allows young persons who have attained the age of eighteen to publish
identifying information provided they are not in custody. Once young persons have chosen to
publish information about them, further publication is no longer prohibited (s. 112).
For a table summarizing the exceptions to the general prohibition against publication, see
Circumstances under which the Name of a Young Person, a Witness or a Victim Could be Made
Public.
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YCJA Explained Custody and Supervision : Introduction
Custody and Supervision
The Youth Criminal Justice Act (YCJA) clearly reflects a strong preference for non-custodial
sentences wherever possible. The preamble states that the youth justice system should reserve its
most serious intervention for the most serious crimes and reduce the over-reliance on
incarceration for non-violent young persons. Sentencing principles emphasize the requirement of
proportionality in sentencing and, within the limits of proportionality, the requirements of the
least restrictive alternative and the promotion of rehabilitation and reintegration. The restrictions
on custody in section 39 prohibit custody in many cases and require a thorough exploration of
alternatives to custody in cases in which custody is not prohibited.
Use of Custody
It is anticipated that under the YCJA the number of young people going into custody will be
reduced, and that there will be far fewer young people in custody for less serious and non-violent
offences. However, for a certain number of youth it will be the appropriate sentence. An
underlying belief of the YCJA is that these youth must be treated with respect and given
opportunities to rehabilitate and reintegrate into the community.
Re-integrative Custody and Supervision
Central to the YCJA custody provisions is the notion of re-integrative custody and supervision,
which recognizes that from the time the young person enters custody, efforts are to be directed at
eventual successful reintegration back into the community. This approach goes hand-in-hand with
the YCJAs redefinition of the custody order as a single custody and supervision order, and is
based on continuity between the programs and services offered in both the custody and
community portions of the sentence, and on support during the critical transition period faced by
youth leaving custody.
Purposes and Principles
In order to provide clear guidance on the treatment of young persons in custody and under
supervision in the community, and to assist in consistent practices across Canada, section 83 of
the YCJA includes statements of purpose and principles that are specific to youth custody and
supervision. The legislated statement recognizes that depriving youth of their liberty by sending
them to custody is the most severe intervention that the state can make and it is intended to ensure
that Parliaments approach is to be carried out equally and fairly in relation to all youth in custody
or under supervision when returning to the community. The purposes and principles for custody
and supervision work in conjunction with and are reflective of the general principles set out in
section 3 of the YCJA and applicable to the entire youth justice system. Treatment of youth in
custody must comply with the general youth justice principles in section 3 and the specific
purpose and principles set out in section 83.
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Purpose and Principles
Purpose of custody and supervision system
Principles for custody and supervision
In order to provide clear guidance on the treatment of young persons in custody and under
supervision in the community, and to assist in consistent practices across Canada, section 83 of
the YCJA includes statements of purpose and principles that are specific to youth custody and
supervision. The purposes and principles for custody and supervision work in conjunction with
and are reflective of the general principles set out in section 3 of the YCJA and applicable to the
entire youth justice system. Treatment of youth in custody must comply with the general youth
justice principles in section 3 and the specific purpose and principles set out in section 83.
Particularly relevant to custody and supervision is the principle in that the youth criminal justice
system must be separate from that of adults and emphasize rehabilitation and reintegration
(para. 3(1)(b)). As well, young people have enhanced procedural protections to ensure that they
are treated fairly, and that their rights, including their right to privacy, are protected
(para. 3(1)(d)). Section 3 also emphasizes that proportionate accountability of young persons
must be consistent with their greater dependency and their reduced level of maturity
(para. 3(1)(c)). In addition, section 3 provides that, within the limits of fair and proportionate
accountability, the measures taken against young persons who commit offences should
be meaningful for the individual young person, given his or her needs and level of
development (para. 3(1)(c)(iii));
where appropriate, involve the parents, the extended family, the community and social or
other agencies in the young persons rehabilitation and reintegration (para. 3(1)(c)(iii));
respect gender, ethnic, cultural and linguistic differences (para. 3(1)(c)(iv)); and
respond to the needs of aboriginal young person and of young persons with special
requirements (para. 3(1)(c)(iv)).
YCJA Explained Custody and Supervision : Explanatory Text
Also important are the principles emphasizing that young persons have rights and freedoms in
their own right, such as a right to be heard in the course of and to participate in the processes that
lead to decisions that affect them, and that young persons have special guarantees of their rights
and freedoms.
Purpose of custody and supervision system (SS. 83(1))
The YCJA, for the first time under Canadian law, contains a specific legislated statement of
purpose and principles of youth custody and supervision. The YOA contained overall principles
that were not directed to youth custody but were very general, inconsistent with each other, and
not ranked in terms of priority. The result was an absence of clear legislative direction to those
involved in the youth custody/supervision system. It may be argued that it is in this area, where
young people experience the most serious deprivation of their liberty (even if serving their
sentence in a less restrictive environment), that it is most important that everyone be clear about
how these youth are to be treated. The legislated statement is based on the belief that depriving
youth of their liberty by sending them to custody is the most severe intervention that the state can
make, and is intended to ensure that Parliaments approach is to be carried out equally and fairly
in relation to all youth in custody or under supervision when returning to the community.
In setting out the purpose of the youth custody and supervision system, section 83 gives equal
importance to:
carrying out sentences of the court through safe, fair and humane custody and supervision
(para. 83(1)(a)), and
assisting young persons to be rehabilitated and reintegrated into the community by providing
effective programs in custody and in the community under supervision (para. 83(1)(b)).
It is through these two aspects working together that fairness can best be ensured and law abiding
behaviour facilitated, re-offending reduced, and the best contribution made to the long-term
protection of society.
Of particular importance is the requirement for safe, fair and humane custody and supervision
of young persons. This represents a legislated benchmark against which all practices and
procedures must be measured. It also sets the standard for the type of environment that must be
provided to young people in custody, and recognizes that rehabilitation and reintegration cannot
take place unless the young person is treated fairly and humanely, in a safe environment.
Principles for custody and supervision (SS. 83(2))
The principles that set out how the purpose is to be achieved include the following:
Least restrictive measures (para. 83(2)(a))
This reflects the fundamental policy of the YCJA that the criminal law should be used with
restraint. A young person should not be subject to an intervention that is more restrictive or
intrusive than the minimum necessary to deal with all the measures relating to young people
in custody ranging from day to day activities to the most serious interventions. This provision
generally encourages the use of least restrictive custody levels and practices that are least
likely to significantly restrict the liberty and other rights of the young person. This is very
important in relation to areas ranging from use of physical restraints (both in resort to use of
such restraints in the first place, and the degree of restraint), to types of conditions that are
placed on a young person under supervision in the community. It calls for a careful
assessment of what would constitute the least restrictive measure in a particular situation,
while taking into account the need for protection of the public, personnel working with the
young person, and the young person themselves.
Young persons sentenced in custody retain the rights of other young persons (para. 83(2)(b))
This principle recognizes that young people have rights in their own right, and that these
rights are not removed or restricted for a young person in custody or under supervision,
except to the extent necessary to carry out the sentence of the court. Thus while the young
person is in custody, the right to liberty may be restricted, but other rights are not. The young
person still retains right to counsel, right to freedom of expression, and other Charter rights,
and they can only be limited as a direct result of the sentence. Further, the young persons
rights in regard to consent to treatment or care are preserved.
Facilitate the involvement of the families of young persons and members of the public
(para. 83(2)(c))
The notion of reintegrative custody recognizes that a young person will be leaving custody
and returning to the community at some point, and that the best way to assist in a successful
reintegration and avoid reoffending is through continual contact and involvement of families,
other meaningful individuals, and members of the public. While family involvement may not
always be possible or appropriate, depending on the circumstances, it is important to maintain
or facilitate links with those who will be involved with the young person and provide support.
This can be achieved through visiting programs, reintegration leaves, conferences aimed at
reintegration, and mentoring and other programs that ensure that a young person is not facing
isolation while in custody, but is building on relationships that can assist in reintegration.
Decisions are to be made in a forthright, fair and timely manner (para. 83(2)(d))
This principle flows from the need to ensure that decisions that affect young people in
custody and on supervision in the community are fair, open and timely. When decisions are
made in this manner, the young person is more likely to comply. To the greatest extent
possible, the young person should be heard in the course of and participate in decisions that
affect them. An important example of this would be involvement in the development of a
reintegration plan. They should have access to information on which decisions are based (any
withholding should only be to the extent necessary to protect safety and security). The need
for timeliness reflects the general statement in section 3 that the youth justice system must
emphasize the promptness and speed with which persons responsible for enforcing this Act
must act, given young persons perception of time.
Young persons have access to an effective review procedure (para. 83(2)(d))
Going hand in hand with the requirement for forthright, fair and timely decisions, is the
young persons access to an effective review procedure. This can be through legislated
provisions in relation to areas such as custody reviews, reviews of levels of custody, as well
as through a young persons access to a child advocate or other form of ombudsperson.
Placements of young persons where they are treated as adults must not disadvantage them
with respect to their eligibility for and conditions of release (para. 83(2)(e))
While the YCJA retains the general rule that a young person who is serving a youth custody
sentence is to be held separate and apart from adults, it also contains provisions that allow a
court to transfer those who reach adult age to adult facilities, if certain criteria are met. This
serves to further protect youth serving their sentences in the youth system. In simple terms,
this principle means that a youth who reaches adult age and is transferred to adult facilities,
should not be disadvantaged with respect to eligibility for and conditions of release. Thus a
young person should, as a general principle be eligible for conditional release and other
programs that are available in the adult facility. At the same time, the young person has been
sentenced as a youth, and privacy protections would continue to apply.
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Re-integrative Custody and Supervision
Purpose and Principles
Reintegration Planning
Reintegration Leaves
Determination of Custody Level
Community Supervision
Setting Conditions
Breach of Conditions
Custody Reviews
Annual Review of Sentence during Custody
Optional Review of Sentence during Custody
Special Measures
Application to Continue Custody
Sentence Calculation
Age-related Placement
Introduction
Part 5 (sections 83 to 109) of the Youth Criminal Justice Act (YCJA) sets out the provisions
governing the youth custody and supervision system. This description deals with the principles
and procedures that determine how a young person is to be treated while in youth custody and in
the community under supervision following custody.
The YCJA clearly reflects a strong preference for non-custodial sentences wherever possible. The
preamble to the YCJA states that the youth justice system should reserve its most serious
intervention for the most serious crimes and reduce the over-reliance on incarceration for non-
violent young persons. Sentencing principles emphasize the requirement of proportionality in
sentencing and, within the limits of proportionality, the requirements of the least restrictive
alternative and the promotion of rehabilitation and reintegration. The restrictions on custody in
section 39 prohibit custody in many cases and require a thorough exploration of alternatives to
custody in cases in which custody is not prohibited.
It is anticipated that under the YCJA the number of young people going into custody will be
reduced, and that there will be far fewer young people in custody for less serious and non-violent
offences. However, for a certain number of youth it will be the appropriate sentence. An
underlying belief of the YCJA is that these youth must be treated with respect and given
opportunities to rehabilitate and reintegrate into the community.
Central to the YCJA custody provisions is the notion of re-integrative custody and supervision,
which recognizes that from the time the young person enters custody, efforts are to be directed at
eventual successful reintegration back into the community. This approach goes hand-in-hand with
the YCJAs redefinition of the custody order as a single custody and supervision order, and is
based on continuity between the programs and services offered in both the custody and
community portions of the sentence, and on support during the critical transition period faced by
youth leaving custody.
There are various types of custody and supervision orders set out in section 42:
regular custody and supervision order (para. 42(2)(n));
custody and supervision order for attempted murder, manslaughter or aggravated sexual
assault (para. 42(2)(o));
custody and supervision order for murder (para. 42(2)(q));
intensive rehabilitative custody and supervision order (para. 42(2)(r)).
The YCJA replaces the custody order of the Young Offenders Act (YOA) with a new, single order
of custody and supervision. This new sentence requires that the custodial portion be followed by a
period of supervision and support in the community, to assist the young person in a successful
transition, and to reduce re-offending. It applies to custody and supervision orders, intensive
rehabilitative custody and supervision orders and youth sentences for murder. Further re-
integrative measures in the YCJA include the requirement that a youth worker work with the
young person, as soon as the young person goes into custody, to plan for his or her reintegration
into the community. The reintegration plan sets out the most effective programs for the young
person, in custody and in the community, in order to maximize his or her chances for successful
reintegration into the community. When the young person is serving the community supervision
portion of the sentence, the youth worker will be responsible for case management, including
supervision and providing support and assistance to the young person in respecting conditions
and implementing the reintegration plan. This builds in continuity between the custody and
community portions of the sentence.
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Reintegration Planning
The new single custody and supervision sentence created by the YCJA requires that the custodial
portion be followed by a period of supervision and support in the community to assist the young
person in a successful transition and to reduce re-offending. It applies to all custody and
supervision orders, including intensive rehabilitative custody and supervision orders and youth
sentences for murder.
Further re-integrative measures in the YCJA include the requirement that a youth worker work
with the young person, as soon as the young person goes into custody, to plan for his or
reintegration into the community. This builds in continuity between the custody and community
portions of the sentence.
When a young person goes into custody, the provincial director must designate a youth worker to
work with the young person to plan for his or her reintegration into the community (ss. 90(1)).
This will include preparation of a reintegration plan that sets out key supports and the most
effective programs for the young person in order to maximize his or her chances for successful
reintegration into the community. When the young person is serving the community supervision
portion of the sentence, the youth worker will supervise the young person and provide support
and assistance to the young person in respecting conditions and implementing the reintegration
plan (ss. 90(2)).
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Reintegration Leave
Over the course of the custody portion of a youth sentence, the provincial director may authorize
reintegration leaves for young persons (s. 91).[1] A young person may be authorized to have a
reintegration leave for the purpose of the young persons rehabilitation and preparation for
eventual reintegration back into the community.
The purposes for which leaves may be granted are set out in the legislation and include:
leave up to thirty days for medical, compassionate or humanitarian reasons or for
rehabilitation or reintegration into the community (para. 91(1)(a)); or
leave at times specified by the provincial director for (para. 91(1)(b))
attending school, an educational or training institution,
employment or domestic or other duties required by the young person's family,
participating in a program specified by the provincial director to carry out
employment or improve his or her education or training, or
attending a treatment or other program aimed at addressing the young person's needs.
Reintegration leaves can be renewed by the provincial director on reassessment of the case. The
provincial director can also revoke a leave and return the young person to custody.
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Community Supervision: Setting Conditions
Every youth sentence that provides for supervision in the community following custody will have
conditions attached to that supervision. The portion that is to be served in the community will be
served under supervision and be subject to conditions. There are two types of supervision.
Although both involve supervision in the community subject to conditions, the key distinction
between the two types relates to who is authorized by the YCJA to set the conditions:
community supervision forms part of regular custody and supervision orders issued under
paragraph 42(2)(n). Certain mandatory conditions apply and optional conditions may be set
by the provincial director prior to release from custody.
conditional supervision forms part of the other three types of custody and supervision
order.[2] Certain mandatory conditions apply and optional conditions may be set by the youth
court judge prior to release from custody. This is also the form of supervision that applies
where a custody review under section 94 leads to the early commencement of the supervision
portion.
The YCJA contains a list of mandatory conditions that apply to a young person while under
supervision in the community. Additional conditions may be imposed that are more targeted to
the needs or managing the risk of individual youth. With respect to custody and supervision
orders for which the provincial director sets conditions, there are six mandatory conditions that
must appear in the order.
keep the peace and be of good behaviour (para. 97(1)(a));
report to the provincial director and then be under the supervision of the provincial director
(para. 97(1)(b));
inform the provincial director immediately on being arrested or questioned by the police
(para. 97(1)(c));
report to the police, or any named individual, as instructed by the provincial director
(para. 97(1)(d));
advise the provincial director of the young persons address of residence and report
immediately to the provincial director any change (para. 97(1)(e))
i) in that address,
ii) in the young persons normal occupation, including employment, vocational or
educational training and volunteer work,
iii) in the young persons family or financial situation, and
iv) that may reasonably be expected to affect the young person's ability to comply
with the conditions of the sentence; and
not own, possess or have the control of any weapon, ammunition, prohibited ammunition,
prohibited device or explosive substance, except as authorized in writing by the provincial
director for the purposes of the young person participating in a program specified in the
authorization (para. 97(1)(f)).
In addition, the provincial director may attach to the order other conditions aimed at addressing
the needs or managing the risk of individual youth. When setting the conditions, the provincial
director must take into account (ss. 97(2)):
the needs of the young person;
the most effective programs for the young person in order to maximize his or her chances for
reintegration into the community;
the nature of the offence; and
the ability of the young person to comply with the conditions.
With respect to custody and supervision orders for which the court sets conditions, lists of both
mandatory and optional conditions are set out in the legislation. The provincial director is
required to bring the young person to the youth justice court prior to the expiry of the custody
portion of the sentence for the setting of conditions on supervision. In such cases, the court must
include the eight mandatory conditions in the order and may also choose to include some or all of
the optional conditions, including that the youth comply with conditions set out in the order that
support and address his or her needs and promote his or her reintegration into the community
(s. 105).
keep the peace and be of good behaviour (para. 105(2)(a));
appear before the youth justice court when required by the court to do so (para. 105(2)(b));
report to the provincial director immediately on release, and then be under the supervision of
the provincial director or a person designated by the youth justice court (para. 105(2)(c));
inform the provincial director immediately on being arrested or questioned by the police
(para. 105(2)(d));
report to the police, or any named individual, as instructed by the provincial director
(para. 105(2)(e));
advise the provincial director of the young persons address of residence and report
immediately to the provincial director any change (para. 105(2)(f))
i) in that address,
ii) in the young persons normal occupation, including employment, vocational or
educational training and volunteer work,
iii) in the young persons family or financial situation, and
iv) that may reasonably be expected to affect the young person's ability to comply
with the conditions of the sentence;
not own, possess or have the control of any weapon, ammunition, prohibited ammunition,
prohibited device or explosive substance, except as authorized by the order (para. 105(2)(g));
and
comply with any reasonable instructions that the provincial director considers necessary in
respect of any condition of the conditional supervision in order to prevent a breach of that
condition or to protect society (para. 105(2)(h)).
In addition, the court may include conditions from the following list:
on release, travel directly to the young persons place of residence, or to any other place that
is noted in the order (para. 105(3)(a));
make reasonable efforts to obtain and maintain suitable employment (para. 105(3)(b));
attend school or any other place of learning, training or recreation that is appropriate, if the
court is satisfied that a suitable program is available for the young person at such a place
(para. 105(3)(c));
reside with a parent, or any other adult that the court considers appropriate, who is willing to
provide for the care and maintenance of the young person (para. 105(3)(d));
reside in any place that the provincial director may specify (para. 105(3)(e));
remain within the territorial jurisdiction of one or more courts named in the order
(para. 105(3)(f));
comply with conditions set out in the order that support and address the needs of the young
person and promote the reintegration of the young person into the community
(para. 105(3)(g)); and
comply with any other conditions set out in the order that the court considers appropriate,
including conditions for securing the young person's good conduct and for preventing the
young person from repeating the offence or committing other offences (para. 105(3)(h)).
The conditions cover the spectrum of the youths needs and circumstances. However, it is
essential that conditions be imposed, whether by the court or by the provincial director, that are
reasonable. It may be appropriate to convene a conference at this stage, involving the youth and
other key individuals, when coming to a sense of what are reasonable conditions. This will help
avoid the consequences of setting the youth up for failure through imposing unrealistic
conditions and ensure that the youth will be appropriately supervised and supported.
Conditions tend to focus on establishing structure in the youths life, discouraging factors
associated with the youths offending behaviour and encouraging law-abiding behaviour.
Elements of support would also be encouraged by the youth worker to assist the youths
reintegration plan (e.g. family counseling, finding educational and employment opportunities,
mentors and community supports for the youth).
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Community Supervision: Breach of Conditions
Flow Charts
Breach of Conditions during Supervision Portion of Custody and Supervision Order under
YCJA 42(2)(n)
Breach of Conditions during Supervision Portion of Custody and Supervision Order under
YCJA 42(2)(o), (p), (q) and (r)
Breach of Conditions: Warrant of Apprehension
Checklist
Checklist for Breach of Conditions on Community or Conditional Supervision (s. 102 and
109)
If a young person breaches a condition while under supervision in the community, reviews will be
held that can result in a change in conditions or in the young person being returned to custody.
Where the provincial director has set conditions:
If the provincial director believes a young person may have breached or is about to breach a
condition in an order for custody and supervision for which he has set the conditions,[3] he
may allow the youth to continue with supervision on the same or on different conditions or, if
he believes the breach is serious and a risk to public safety, he may order the youth to be
remanded in custody (s. 102).
Where the court has set conditions:
If the provincial director believes a young person may have breached or is about to breach a
condition in an order for custody and supervision where the court has set the conditions,[4] he
may suspend supervision and order the youth to be remanded in custody until a review can be
conducted of the case (s. 106).
In either case, the provincial director may issue a warrant for the youths apprehension. While the
warrant is outstanding, the clock stops running on the youths sentence. On execution of the
warrant, the police officer must bring the young person before the director as soon as possible.
The provincial director shall then review the case and, within 48 hours, cancel the suspension of
the conditional supervision or refer the case to the youth justice court for review (s. 108).
The court, after hearing from the youth, must first determine whether the young person has
breached or was about to breach a condition of the conditional supervision. If the court is not
satisfied of this, it must cancel the suspension of the conditional supervision; otherwise, it must
review the decision of the provincial director to suspend the conditional supervision, and order
the suspension of the conditional supervision to be cancelled, and when it does so, the court
may vary the conditions of the conditional supervision or impose new conditions;

in a case other than a deferred custody and supervision order made under paragraph 42(2)(p),
the suspension of the conditional supervision be continued but not to exceed the remainder of
the youth sentence;

in the case of a deferred custody and supervision order made under paragraph 42(2)(p), that
the young person serve the remainder of the order as if it were a custody and supervision
order under paragraph 42(2)(n).
In making its decision, the court shall consider the length of time the young person has been
subject to the order, whether the young person has previously contravened it and the nature of the
contravention (s. 109).
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Custody Reviews: Annual Review
Flow Charts
Flow Chart for Annual Review of Sentence during Custody
Checklist
Checklist for Annual Review of Sentence during Custody (s. 94)
Where a young person is serving a youth sentence of which the custody portion exceeds one year,
the youth justice court will conduct a review of the sentence on an annual basis. The provincial
director must bring the young person before the court for this review at the end of one year from
the date the sentence was imposed and annually after that (s. 94). If the director fails to do so, the
youth, parent or crown may apply to the court for an order that the provincial director bring the
young person before the court.
Notice of review should be given by the provincial director to the young person, parent and
crown. Notice to the parent must include advice that the young person is entitled to legal
representation.
The provincial director must provide the court with a progress report on the youths performance
while under sentence. The progress report may include information relating to the personal and
family history and present environment of the young person.
while under sentence. The progress report may include information that the provincial director or
other person preparing the report considers advisable and that relates to the personal and family
history and present environment of the young person.
Following its hearing and review, the court may confirm the youth sentence, release the youth on
conditional supervision or convert a sentence imposed as an intensive rehabilitative custody and
supervision order to a straightforward custody and supervision order or to an order under the
murder regime. The test to be used by the judge is consideration of the needs of the young person
and the interests of society.
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Custody Reviews: Optional Review
Flow Charts
Flow Chart for Optional Review of Sentence during Custody
Checklist
Checklist for Optional Review of Sentence during Custody (s. 94)
The youth justice court may be asked to review a youth sentence at other stages than the
anniversary of the custody portion of the sentence. Optional reviews may arise because the
provincial director has decided to apply for one, or they may result from the young person, parent
or crown has requesting a review, in which case the provincial director is required to apply to the
court for a review of sentence (ss. 94(3)). In addition, the court may give leave to review the
sentence at any other time (ss. 94(4)).
The provincial director must bring the young person to court and if the director fails to do so, the
youth, parent or crown may apply to the court for an order that the provincial director bring the
young person before the court. Notice of review should be given by the person requesting the
review to the young person, parent and crown. Notice to the parent must include advice that the
youth is entitled to legal representation.
Before conducting an optional review, the court must first determine that there are grounds for
one. A list of these grounds is set out in the legislation (ss. 94(6)):
the young person has made sufficient progress to justify a change in the sentence;
the circumstances that led to the sentence have changed significantly;
new services or programs are now available;
the opportunities for rehabilitation are now greater in the community; or
any other ground that the youth justice court considers appropriate.
Optional reviews may be of sentences of any length but there are some restrictions on the time
periods within which they may be sought.[5]
while under sentence. The progress report may include information relating to the personal and
family history and present environment of the young person. Notice of review should be given by
the person requesting the review to the young person, parent and crown. Notice to the parent must
include advice that the youth is entitled to legal representation.
Following its review, the court may confirm the youth sentence, release the youth on conditional
supervision or convert a sentence imposed as an intensive rehabilitative custody and supervision
order to a straightforward custody and supervision order or to an order under the murder regime.
The test to be used by the judge is consideration of the needs of the young person and the
interests of society.
A custody review may also occur in cases where the provincial director makes a
recommendation, under section 96, to the youth justice court that a young person be released
from custody and placed under conditional supervision. In such cases, the provincial director is to
give the young person, his parent and the Attorney General notice that he is doing so. The notice
must include the reasons for his recommendation as well as any conditions that the director would
recommend the court set on that supervision. The youth, parent or crown may then apply to the
court for a review of the recommendation, following which the court must review the sentence. If
no application is made for review of the recommendation, the court must decide whether to order
the release of the youth on conditional supervision or not.
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Special Measures: Application to Continue Custody
Continuation of Custody under Regular Custody and Supervision Orders
Continuation of Custody under Other Custody and Supervision Orders
Continuation of Custody under Regular Custody and Supervision Orders
(Para. 42(2)(n))
Flow Chart
Flow Chart for Application to Continue Custody under Regular Custody and Supervision
Orders (para. 42(2)(n))
Checklist
Checklist for Application to Continue Custody under Regular Custody and Supervision
Orders (para. 42(2)(n))
Each sentence with a custody and supervision portion is subject to the possibility that the young
person may be required to remain in custody and not serve the community supervision portion of
the sentence where it is established that the young person presents a serious risk of committing a
serious violent offence before the expiry of the sentence. The crown or the provincial director
may apply to the youth justice court for an order that a youth remain in custody for some or all of
the remainder of his sentence. This application must be made within a reasonable time before the
end of the custodial portion of the sentence (s. 98(1)).
The court is to hold a hearing at which the director, young person and parent may be heard. It
may order the continuation of custody if it believes the youth is likely to commit a serious violent
offence while on supervision and the conditions imposed during that supervision would not be
adequate to prevent the commission of that offence (s. 98(3)).
In its consideration, the court is required to take into consideration any factor relevant to the case,
including the following (s. 98(4)):
evidence of a pattern of persistent violent behaviour and, in particular: the number of offences
causing physical or psychological harm to another person; difficulties in controlling violent
impulses to the point of endangering others; the use of weapons in committing offences;
explicit threats of violence; brutal behaviour associated with an offence; and, significant
indifference by the youth to the foreseeable consequences for others of his or her behaviour;
evidence that illness or mental disorder indicates that the young person is likely to commit a
serious violent offence before the expiry of the youth sentence;
information satisfying the court that the young person is planning to commit a serious violent
offence before the expiry of the sentence;
supervision programs in the community that would protect the public from risks the young
person might present until the expiry of the youth sentence;
whether the young person is more likely to re-offend if he or she serves his or her youth
sentence entirely in custody without the benefits of serving a portion of the youth sentence in
the community under supervision; and
evidence of a pattern of committing violent offences while he or she was serving a portion of
a youth sentence in the community under supervision.
The provincial director is required to submit to the court a report setting out any information
relating to the above factors that the director is aware of that may be of assistance to the court
(s. 99).
If the court orders the continuation of custody it must provide written reasons for doing so on the
record and provide a copy of the order to the parties involved as well as a copy of its reasons, if
the parties request them (s. 100).
The young person and the provincial director have the right to ask the court of appeal to review
the order of the youth justice court (s. 101).
Continuation of Custody under Other Custody and Supervision Orders
(Para. 42(2)(o), (q) and (r))
Flow Charts
Flow Chart for Application to Continue Custody under Other Custody and Supervision
Orders (Para. 42(2)(o), (q) and (r))
Checklist
Checklist for Application to Continue Custody under Other Custody and Supervision Orders
(para. 42(2)(o), (q) and (r))
Applications to continue the custody portion of custody and supervision orders for offences of
murder, attempted murder, manslaughter or aggravated sexual assault and under intensive
rehabilitative custody and supervision orders, where setting the proportion of custody and
supervision is in the courts discretion, follow slightly different procedures than for regular
custody and supervision orders.
Following an application by the crown, the provincial director must bring the young person to the
court for a hearing in which the youth, crown and parent are given an opportunity to be heard.[6]
The court may then order that the youth remain in custody for some or all of the remainder of the
sentence if it believes the youth is likely to commit an offence causing death or serious harm to
another person before the end of the sentence (s. 104(1)).
In its consideration, the court is required to take into consideration any factor relevant to the case,
including the following:
evidence of a pattern of persistent violent behaviour and, in particular: the number of offences
causing physical or psychological harm to another person; difficulties in controlling violent
impulses to the point of endangering others; the use of weapons in committing offences;
explicit threats of violence; brutal behaviour associated with an offence; and, significant
indifference by the youth to the foreseeable consequences for others of his or her behaviour;
evidence that illness or mental disorder indicates that the young person is likely, before the
expiry of the youth sentence, to commit an offence causing death or serious harm to another;
information satisfying the court that the young person is planning to commit, before the
expiry of the youth sentence, an offence causing death or serious harm to another; and
supervision programs in the community that would protect the public from risks the young
person might present until the expiry of the youth sentence.
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Special Measures: Sentence Calculation
Merger of Custodial Sentences
The YCJA requires that youth sentences be calculated and administered in accordance with a set
of rules. The statutory base for these rules is found in the YCJA as well as in the Criminal Code,
Corrections and Conditional Release Act and Prisons and Reformatories Act.
These rules are described in two documents, which have been prepared by a working group of
front-line and other provincial officials, led by New Brunswick and Saskatchewan. The
documents express the views of the members of the working group. The first document, Sentence
Calculation, provides a general overview and description of sentence calculation and
administration in the YCJA. The second document, YCJA: Sentence Calculation Rules, is a more
detailed examination of sentence calculation rules and how they apply in a range of situations that
may arise. The document was prepared to assist administrators and calculators to consistently
calculate the sentences received and crown counsel, judges and other justice personnel to
understand the effect of sentence calculation in individual cases.
Merger of Custodial Sentences
In most cases the sentence calculation rules for youth are the same as the rules for youth under the
Young Offenders Act (YOA). One significant difference, however, is that the YCJA extends the
concept of a custody and supervision sentence, which the YOA makes available only in the case
of sentences for murder, to all custody sentences. This requires that administrators be able to
calculate the date on which the community portion of a custody sentence begins. While this will
be a relatively straightforward exercise where there is only one custody and supervision sentence,
it becomes somewhat more complex when, as is often the case, a youth is subject to multiple
sentences.
When a youth is serving a custody and supervision sentence and receives a new custody and
supervision sentence, the old and new sentences are merged and become one sentence. The
merged sentence begins from the date of imposition of the first of the sentences and ends on the
date of expiration of the last of them to be served.[7] The length of a custody sentence includes the
period in custody and the period of supervision in the community. That is, the sentence expires at
the end of the community portion of the custodial sentence. The consecutive or concurrent
direction of the individual sentences is respected in determining the total merged sentence. The
merged sentence serves as the basis for calculating the start of the community portion of the
custodial sentence.
Canada Canada
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Special Measures: Age-related Placement
Placement with Respect to Youth Sentences
Placement when a Young Person Receives an Adult Sentence
Youth can be sentenced under the YCJA or in some cases may be sentenced as adults under the
Criminal Code (CC). Where a youth is sentenced under the YCJA it is possible that after
becoming 18 it is possible that the remainder of his or her custodial sentence might be served in a
provincial correctional facility or penitentiary. The YCJA contains special rules for how those
sentences are dealt with by the provincial or federal correctional authorities when that happens.
Where youth are sentenced as adults they may serve all or a portion of their custodial sentence in
a youth facility, provincial correctional facility or penitentiary, depending on their age. The YCJA
sets out when this can happen and the effect these placement decisions have on the administration
of these special adult sentences.
Placement with Respect to Youth Sentences
In order to ensure that youth facilities are restricted as much as possible to youth, special rules
may apply in some cases to the placement or transfer of young persons who reach adult age prior
to or while serving custody pursuant to a youth sentence. Section 84 of the YCJA retains the
general rule that a young person who is serving a youth custody sentence is to be held separate
and apart from adults. The YCJA also creates a presumption that once a young person in a youth
facility reaches the age of twenty he or she should be transferred from the youth facility to an
adult facility to serve the remainder of the sentence. This serves to further protect youth serving
their sentences in the youth system.
Where a youth becomes 18 years of age while serving a youth sentence in a youth facility, the
provincial director may apply to a youth justice court for authority to transfer the youth to a
provincial facility. In certain circumstances the provincial director may later apply to the
youth justice court for authority to transfer the young person to a penitentiary if two or more
years of the sentence remains (s. 92).
Where a youth becomes 20 years of age while serving a youth sentence in a youth facility, he
or she must be transferred to a provincial facility unless the provincial director decides that he
or she should continue in a youth facility. If a youth is transferred to a provincial facility, the
provincial director may apply to a youth justice court to have the youth transferred to a
penitentiary (s. 93).
The judge would base a decision in either of these situations on the best interests of the young
person or the public interest.
When a youth is 20 years of age or older when the youth sentence is imposed, he or she must be
committed to a provincial correctional facility. In certain circumstances the provincial director
may later apply to the youth justice court for authority to transfer the young person to a
penitentiary if two or more years of the sentence remains (s. 89).
When a young person is serving a youth sentence in the adult system, the adult rules regarding
conditional release will apply, with some exceptions. Measures under the YCJA, such as custody
reviews under s. 94, do not apply to the young person, but privacy protections for youth sentences
under the YCJA continue to apply. As a result of amendments made to the Prisons and
Reformatories Act,[8] a youth who is placed in a provincial adult facility is entitled to be released
on the earlier of the remission date calculated under adult rules or the date set for supervision to
begin under section 42 of the YCJA. When released, the youth will be supervised, subject to
conditions being set under section 97 or section 104 of the YCJA.
Placement when a Young Person Receives an Adult Sentence
The YCJA also contains new provisions relating to placement of a young person who receives an
adult sentence. In such cases, the youth justice court must hold a hearing to determine in which
custodial system youth, adult provincial or federal penitentiary the sentence will be served.
The court makes this determination subject to the following presumptions: if the young person is
under eighteen at the time of sentencing, the sentence should be served in the youth custody
system (but not beyond the age of twenty); and, if over eighteen, in either the adult provincial or
federal system. The judge is also to consider the best interests of the young person and the safety
of others. Because the young person is serving an adult sentence, rules relating to conditional
release of adults set out in the Corrections and Conditional Release Act generally apply,
regardless of whether the sentence is being served in an adult or youth facility.[9] The placement
decision may be reviewed by the youth court following a hearing.
SECTION 6
Aboriginal Issues
Section 6: Aboriginal Issues 6.1
6.2 Section 6: Aboriginal Issues
Provisions Specific to
Aboriginal Youth
q Within the limits of fair and
proportionate accountability,
the measures taken against a
YP should:
- respect gender, ethnic, cultural
and linguistic differences and
respond to the needs of aboriginal
YPs and of YPs with special
requirements
q all available sanctions other than
custody that are reasonable in the
circumstances should be considered
for all youth with particular
attention to the circumstances
of aboriginal YPs
NOTES: From another perspective
SECTION 7
The Restorative Justice Program
Section 7: Restorative Justice Program 7.1
7.2 Section 7: Restorative Justice Program
USING THE RESTORATIVE JUSTICE CHECKLIST
Quick Reference Guide for Crown Attorneys
Requirements
A completed Restorative Justice Checklist is required for ALL Level
1 and Level 2 offences whether the case is dealt with by way of :
q Formal Caution
q Referral to a restorative justice agency
q Referral to a Police restorative justice program( RCMP)
q Charge laid
Every Crown disclosure package for youth being charged with
Level 1 or Level 2 offences MUST also include the YELLOW and
PINK copies of the completed Restorative Justice Checklist.
Post Charge Referral to Restorative Justice Agency
When a Crown Attorney determines that a case will be referred
post charge to the Restorative Justice Program:
a) The Crown section of the Checklist is completed, and the
YELLOW copy is forwarded to the appropriate Restorative
Justice Agency, along with any other pertinent file information
which was provided to the Crown office in the disclosure
package from police.
b) While awaiting the redesign of the Checklist form to allow for a
separate Crown review section, Crowns are asked to note any
amendments to the police test of the minimum requirements,
and to add their signature to the Crown Reccomendation
section of thre checklist form.
c) The PINK copy is retained in the Crown file
Proceeding with Prosecution
q When the Crown Attorney determines that a case will proceed
to prosecution, the Yellow and Pink copies are retained in the
Crown file.
q ( The Department of Justice has requested that Crown offices
forward the Yellow copy to the Department of Justice, 5151
Terminal Rd., Halifax, B3J 2L6 for data collections purposes, but
this is currently under review as a result of very few having been
forwarded by Crown offices since the Programs inception in 1999).
Quick Reference Guide for Court Support Staff
Requirements
q Where a youth is being referred post conviction by a Youth
Court Judge, this referral is completed by staff supporting that
Youth Court.
q Electronic copies of the Court Referral checklist form are
available at every Justice Centre.
Post Conviction / Pre Sentence Referral
When a Judge has determined that a youth will be referred to the
Restorative Justice Program:
a) The court Referral checklist will be completed and forwarded to
the Restorative Justice Agency, with any other pertinent
information regarding the Judges disposition and review dates
set in regard to the case
b) At no time will any Victim Impact Statements filed with the
Court be forwarded to the Restorative Justice Agency
POST SENTENCE REFERRALS
Quick Reference Guide for
Probation Officers/Youth Workers
Referral Options
q Referrals can be made Post-sentence by Probation Officers in
the following ways:
q In the context of a Probation Officers work with a youth on their
caseload
q In the context of a Judges disposition requiring an assessment
for suitability / referral to the Restorative Justice Program
q As a step prior to breaching a youth for violations of conditions
of Probation Order
Referrals can be made by the Youth Worker
in the following cases:
q In the context of working with the youth toward eventual
release and return to the community, a referral can be made during
the period of the youths custody
Referrals can be made by the Youth Worker or collaboratively by
the Youth Worker and the Probation Officer in the following way:
q In the context of a reintegration plan developed for the youths
return to the community
Referral to Restorative Justice Agency
q Complete all of the Correctional Services Restorative Justice
Checklist, including minimum requirements and discretionary
factors and recommendations sections.
q Forward the Correctional Services Checklist to the Restorative
Justice Agency, along with any pertinent information regarding the
offence.
Quick Reference Guide for Police
Requirements
A completed Restorative Justice Checklist is required for ALL
LEVEL 1 AND LEVEL 2 OFFENCES whether the case is dealt with
by way of :
q Formal Caution
q Referral to a Restorative Justice agency
q Charge laid
Cautions
a) Complete the first five (5) Sections of the Restorative Justice
Checklist (Personal Identification, Parent Guardian Information,
Offence Information, Victim Information, Proceeding by way of
Formal Caution).
b) Send WHITE copy to Department of Justice, 5151 Terminal Rd.,
Halifax, N.S. B3J 2L6
c) Balance of checklist can be kept in Police File (PINK, YELLOW
and GOLDENROD).
d) Formal Letter of Caution must be sent to youth, with copy to
parent/guardian.
e) Police must inform victim that case is being dealt with via
Formal Caution.
Lay Charge
Complete all of the Restorative Justice Checklist, including
minimum requirements and discretionary factors and
recommendations sections.
a) Send WHITE copy to Department of Justice, 5151 Terminal Rd,
Halifax B3J 2L6.
b) The YELLOWand PINK copies must accompany the Crown
Disclosure Package.
c) The GOLDENROD copy remains in the police file.
Referral to Restorative Justice Agency
Complete all of the Restorative Justice Checklist, including
Minimum Requirements and Discretionary Factors and
Recommendations sections.
a) Send WHITE copy to Department of Justice,5151 Terminal Rd,
Halifax,N.S., B3J 2L6
b) The YELLOWand PINK copies are used to complete the referral
to the Restorative Justice agency, along with any other pertinent
information( i.e. occurrence reports etc)
c) The GOLDENROD copy remains in the police file.
Canada Canada
Canada Canada
Canada Canada
Canada Canada
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YCJA Explained Extrajudicial Measures; Flow Chart 1
Initial Police Options
Canada Canada
Canada Canada
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Crown Options
Crown receives file from police
after charges are laid
Crown
proceeds
with charge
Canada Canada
Canada Canada
Canada Canada
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Charges
proceed
COMMUNITY JUSTICE SOCIETIES
NOVA SCOTIA
Susan Henderson Community Justice Resource Centre Phone: 893-4969
Coordinator 175 Victoria Street Fax: 893-1171
Truro, Nova Scotia E-mail: cjrc@tru.eastlink.ca
B2N 1Z5 Toll Free No.: 1-877-363-5943
East Hants/Colchester
Jane Earle Community Justice Society(Metro) Phone: 424-5473
Executive Director 1740 Granville Street, 5th Floor Fax: 424-3950
P. O. Box 642, Station M E-mail: cjsh@istar.ca
Halifax, Nova Scotia
B3J 2T3
Halifax Regional Municipality
Susan Himmelman Community Justice Society(South Shore) Phone: 543-1766
Coordinator South Shore Branch Fax: 543-3177
P. O. Box 487 E-mail: cjss@ns.sympatico.ns
Bridgewater, Nova Scotia
B4V 2X6
Queens, Lunenburg
Lisa Cole Cumberland Community Alternatives SocietyPhone: 667-4414
Coordinator P. O. Box 843 Fax: 667-4486
Amherst, Nova Scotia E-mail: ccas@ns.sympatico.ca
B4H 4B9
Cumberland
Sylvia Dearing Island Community Justice Society Phone: 563-2596
Director Provincial Building Fax: 563-5699
360 Prince Street E-mail: icjs@ns.sympatico.ca
Sydney, Nova Scotia
B1P 5L1
Cape Breton Regional Municipality, Victoria
Madaline Libbus Island Community Justice Society Phone: 625 7912
Branch Coordinator R. R. #1 Fax: 535-7913
River Bourgeois, Nova Scotia E-mail: iricjs@ns.sympatico.ca
B0E 2X0
Inverness, Richmond
Linda Watters John Howard Society Phone: 396-1999
Coordinator 2020 Queen Street Fax: 396-1109
Westville, Nova Scotia E-mail: jhsrj@ns.sympatico.ca
B0K 2A0
Pictou, Antigonish, Guysborough
Paula Marshall Mikmaq Young Offender Project Phone: 379-2042
Director 4546 Shore Road Fax: 379-2047
Eskasoni, Nova Scotia E-mail: myop@ns.syympatico.ca
B0A 1J0
Cape Breton, Pictou, Guysborough,
Antigonish, Colchester, East Hants
Carmen Doucette Southwest Community Justice Society Phone: 742-8262
Coordinator 10 Starrs Road Fax: 742-1937
Yarmouth, Nova Scotia E-mail: comm.justice@ns.sympatico.ca
B5A 2T1
Digby, Yarmouth, Shelburne
Marge DeBodt Valley Restorative Justice Phone: 679-0650
Coordinator P. O. Box 621 Fax: 679-0860
Kentville, Nova Scotia E-mail: valleyrj@ns.sympatico.ca
B4N 3X7
Annapolis, West Hants, Kings
RESTORATIVE JUSTICE CASE STORY #1
OFFENCE: 266(a) Assault
This case was referred by the Crown Prosecutor. The accused was
involved in a swarming assault on a victim that took place on
school grounds. The victim, a young person, was in the process of
leaving the school property and was confronted by two youths.
After a brief verbal exchange, the victim was punched in the face
and kicked. A small group of onlookers encouraged the assault.
The victim was pushed onto the street and the assault continued.
The assault ended when a passing motorist stopped and took the
victim into the school, and the police were called. The offender, a
15-year old female, attends the same school as the victim, who is
also a 15-year old female.
In preparing for a restorative justice process, a caseworker from the
Agency met with the accused and her mother. They discussed the
fact that the girl had a problem with anger. The girl accepted full
responsibility for her part in the incident. The caseworker also met
with the victim and her mother and explored their interest in
participating in a restorative justice process. The victim was very
angry during many telephone calls in which the caseworker
encouraged her to do something to address how she felt after
being attacked. The victim also took some counselling sessions to
help her deal with her feelings about her personal safety.
The meeting that was set up was a victim/offender mediation
between the two girls. The session began with the accused and her
mother and the victim and her mother present. Then both the
victims and offenders parents were asked to wait in an adjacent
room so that the two girls could begin their discussion
uninterrupted. While waiting outside the room, the parents also
had an opportunity to speak with each other before rejoining the
session. This process helped the youth and the victim to reach an
outcome desirable to all.
Both the victim and the offender, during the session, were able to
communicate the dynamics surrounding the incident. Because they
were able to speak freely, they discussed some of the events
leading up to the assault, which related to dating and an interest
shared by both girls in one particular young man. Some of this
discussion would have been awkward had the parents been
present. In the contract they set up, both girls agreed to work
together to set up a presentation that the offender would facilitate.
The presentation was for school children, on the effects of violence
and bullying. The young person was required to meet with a
police officer involved in an anti-bullying program, where she
gathered information for the presentation. This officer happened to
be coordinating a week-long conference on youth issues, and was
able to involve the offender in that, so that she presented to school
teachers, police, community service professionals and others who
attended the conference.
At this conference both girls about what each was feeling during
the incident. This was emotional for both of them, and everyone
spoke highly of both girls after they presented their information.
Both of the girls were approached individually to facilitate other
presentations after this process was completed.
The exploration of the dynamics between the two girls, and their
mutual contribution towards problem-solving, was the key
outcome of this referral. It also held the offender responsible, not
only for her assault but also for participating in a process that
victimized and intimidated another person, which meant that she
was required to spend time examining her actions as part of a
larger social problem.
OFFENCE: Public Mischief
Two young offenders were referred by police, on a pre-charge
basis, for behaviour which victimized 15 elementary school-aged
kids plus their parents and their guardians. Police received a
number of calls from parents about several young people in a light-
coloured vehicle who were trying to pull children, who were on
their way home from school, into their vehicle. Police were able to
get identifying information from several of the children and began
surveillance for the identified vehicle. This vehicle was located at
the local high school. Two individuals from the van were
interviewed and found to be the main participants in the offence.
They admitted to their involvement. The passenger would lean out
of the vehicle, on several occasions, and make grabs for children.
Several of the children were so upset they could not return to
school that day and continued to be traumatized. The young
pweople indicated that they were just fooling around and meant
the children no harm.
At the preparation meetings for both of the 17-year olds young
men it became clear that, although they took responsibility for their
actions, they downplayed them, presenting their behaviour as a
stupid prank that had been blown way out of proportion. The
offenders parents had a similar attitude. The caseworkers needed
to take time to challenge this attitude and to assist both the youth
and the parents to better grasp how shocking and traumatic their
actions were for these young children.
The caseworkers also met with the victims over a period of almost
three weeks. Some parents came without their children, as the
children were not comfortable attending, and most parents were
very upset. They indicated that the effects on their children had
been long-lasting. They wanted the young people to understand
the severity of what they had done.
The restorative justice process involved a large number of
participants, and so a circle process was chosen as most effective
for allowing all voices to be heard. There were three facilitators
present and 21 people in the circle. During the session, each victim
had an opportunity to confront the young people and their parents
about the harm caused by their actions. Through this process, both
offenders and their parents became clearly aware of how their
actions victimized these children and changed their sense of
personal safety in their community. The young people were
required to complete 60 hours of community service work, prepare
written apologies, and prepare a research project on street-proofing
and child safety.
In this case, the opportunity to be confronted by the parents of
these school-aged victims helped the offenders to truly understand
the nature of their harmful acts, and forced them to be accountable
to their wider community in a fundamental way.
Post-charge referral by Crown Prosecutor
CHARGE: Assault
A young female in her teens was leaving a local function with her
friends when three females approached and started hitting one of
the boys in the group. This female stepped forward to encourage
the girls to stop and to retrieve an item dropped by the boy. The
females turned their assault towards her and proceeded to hit, kick
and punch her and pull her hair out. Two of the three females
involved were referred to the Restorative Justice Program.
The caseworkers met with the victim who reported that initially she
was in a state of shock. She was sore, scared, surprised, and
emotionally upset. During discussion, it was clear that she had
moved to a stage in her recovery when she was ready for an
opportunity for resolution. She was still intimidated by the third
youth who was not referred to the Agency, but she was willing to
meet with the other two. She felt that the situation was unresolved
and she needed to clear things up so that these girls would
understand how their actions were harmful.
One concern that caused her a great deal of confusion was Why
Her?. She had other questions. Did they think their actions were
excessive? Did they understand that they had crossed a line? Did
they realize the impact this incident had on her? The victims
mother was considered a secondary victim as she was also deeply
affected by this incident. She expressed how resentful she felt
towards the three youths for what they had done to her daughter,
and how she felt it was unfair that it wasnt safe to attend a local
event in your own community. She reported that she worried
constantly about her daughter when she went out.
The victims friend was present at this incident and was deeply
affected by what she had experienced as well. She felt it was not
normal for teenagers to attack one another. The incident affected
her perception of safety in her community, and she felt that if this
violence was a reality, she would want to move from this
community. She wanted some affirmation from the girls that this
would not happen again, to anyone.
The caseworkers met with the girls to explore their understanding
of their responsibility for the offence and how they understood
their own behaviour. Both girls took responsibility for their actions
but were trying to justify it with some degree of victim blaming.
They thought that the victim had interfered with a fight with their
mutual friend and that she had no right to do that. They fully
understood they had caused harm, but they both explained that
they had a problem managing their anger and that, essentially, the
victim was in the wrong place at the wrong time. The parents
seemed to support this attitude and felt that the incident was not
serious, that it was being blown out of proportion. Caseworkers
had to spend time challenging the youths and their parents on their
attitudes towards violence as a response to problem solving before
they would allow the forum to go forward.
A community justice forum was held. All parties attended the
forum and began to discuss what had happened. The facilitator
guided the discussion, ensuring that all concerns and points
mentioned above were raised and discussed. It became apparent
after the victims discussed how the incident had affected them that
there was a shift in attitude from both youth offenders and their
parents. Both parents were unaware of the extent of the harm their
daughters had caused and the details of the fight. At this point, the
element of shame replaced the attitude that the victim was in the
wrong place at the wrong time. The parents became embarrassed
by what their daughters had done and expressed to the victim and
her mother that the behaviour was inappropriate and unacceptable.
Both youths expressed remorse for their actions and assured the
victim and her family that they would never do such a thing again.
The agreement that emerged from a long and intense discussion
was for the young people to complete 25 hours of community
service work, and make restitution of $102 each to replace the
victims jacket which was damaged during the incident. Both girls
committed to attending an anger-management workshop and
preparing a research essay on violence and how it affects others.
They also committed to bringing positive messages about this
young person and her circle of friends, within their circle of friends
to de-escalate any further incidents.
Resolving this conflict in a fashion that promotes healing and
empowers all the parties involved exemplifying what the justice
system promotes under restorative justice. It allows everyone to
move forward around the victims issues and the youths behaviour
and attitude. The victims in this case were very pleased with the
outcome, and the youths and the parents were determined to
change their negative attitudes. The youths were so impressed with
the process that they hoped to become involved in the Agency as
volunteers when they reach the age of 19.
This case was referred by the police officer on a pre-charge basis. It
involved a young person in a First Nations community who was
involved in underage drinking and disorderly conduct. This young
person was referred by the police officer to the Mikmaq Young
Offender Project, Mikmaq Justice Circle Program. The restorative
justice process offered by the Mikmaq Young Offender Project
operates somewhat differently from the other restorative justice
programs.
Before convening the Mikmaq Justice Circle, staff holds an
accountability session with the young person. The caseworker
responsible for the accountability session reported that this young
person did not show much respect for his mother who was there in
his support. The young person demonstrated himself to be a very
angry young man who presented himself as a tough person, but he
did take responsibility for his illegal actions. In the discussion the
young person and his mother shared their dislike for the arresting
officer. The caseworker explained that if it had not been for this
officer choosing to make the referral to the Program, the young
person would be going to court instead. Typically, a Mikmaq
Justice Circle for an offence of this type would be reasonably
straightforward. In this particular case, however, the Circle invited
the police officer to share his experience of the arrest with the
young person.
The officer shared that he had been surrounded by approximately
15 to 20 young, inebriated males. He felt threatened and was
evidently quite shaken by this experience. He told the young man
that he knew he was in danger and felt that he might have to draw
his weapon, something that he did not want to do. The constable
stressed to the young person and his mother that he did not want
anyone to get hurt, but recognized that the situation could have
gotten out of control. The young person had been very drunk
during the arrest, he said. The weather was below freezing, and the
officer had to search for the young person in the woods. The officer
added that it was not uncommon for people to pass out in the cold
and never wake up. He expressed his concerns for the young
persons safety. Receiving the perspective of the police officer was
beneficial to the young person, who expressed his remorse at
placing the officer in such a difficult situation.
The outcome of the session was that the ypung person agreed to
community hours as well as other reparation responsibilities. He
completed his hours in a timely manner. A few weeks later, the
caseworker happened to meet with the young persons mother
who reported that she had been speaking with the police officer
who said he was proud of the young person because he had
helped him out over the weekend. The officer found himself again
called out to a disturbance and once again was surrounded by 15
to 20 agitated and inebriated young males. As the officer prepared
himself for a difficult encounter, the young person, who was at the
gathering but not drunk, put himself physically between the crowd
and the police officer. He tturned towards the police officer and
said, Ill help you out. Then he turned back towards the crowd
and said, Leave him alone; hes just trying to do his job, so back
off. Since this young man was held in high regard by many of the
young people present, the crowd disbursed and the incident was
concluded without any further difficulties. The police officer added,
Now when I see him walking down the road or just hanging
around, I either throw a big wave or stop and have a quick chat
with him. I see him as a contributor in the community.
This Circle went far beyond the simple task of holding the young
person accountable for underage drinking. Created an opportunity
for the police officer, the facilitator, the mother and the young
person to explore more deeply the consequences of the young
persons risk-taking behaviour, and empowered him to see the
police officer as a person with an interest in his safety and his
future.
Pre-sentence Referral from Courts
OFFENCE: Dangerous Use of a Firearm
This case involved three youths, all of whom were participants in a
series of incidents that occurred one Saturday afternoon. The
youths had beebee guns with them and shifted from target practice
to using their beebee guns to frighten and intimidate other children
playing in a rural area. They also used their beebee guns to
frighten a youth off his four-wheeler, and shot directly at him,
hitting the bike and the youths helmet.
Upon investigation, it became clear that one youth was clearly a
ringleader and others were followers, although all were involved in
the offences. The two youths who were less involved were referred
post-charge by the Crown Prosecutor to the Restorative Justice
Program, and the youth who was the identified ringleader
proceeded to court for a number of reasons. This particular young
person had been involved in other intimidation activities and was
feared in the neighbourhood. He was the victim of a brain injury
and therefore had a tendency to become upset and aggressive.
This youth appeared before a judge and entered a plea of guilty to
the charges. The judge imposed a firearms ban and instructed the
youth and his parents to ensure that any firearms in the home be
turned over to the RCMP. The youth was then referred to the
Restorative Justice Program as a pre-sentence step.
As the caseworkers began their work, it became clear that many
families in the neighbourhood feared this youth and wondered if
this incident would lead to others. Several families in the
community had developed an opinion about this youths capacities,
as well as his parents commitment to attending to his needs. The
caseworker called a meeting of the parents of the victims involved
in this incident. There were a total of seven youths who had been
either intimidated or fired at, and all of their parents were invited to
a group-preparation session.
At the session, participants learned how the Restorative Justice
Program would work, how the youths were referred differently
post-charge and post-convictionand what their roles could be in
contributing to a meaningful outcome. The parents were upset
about the incidents and reported that this was not the first time this
group of youths had created concern for the neighbourhood. Chief
among the parents concerns was the fact that neither the youths
nor their parents ever made any effort to contact the victims
families to apologize or to ensure that their children were okay.
This lack of communication created a great deal of strain amongst
the victims families. It was agreed that two sessions would be
held. The youths referred by the Crown would meet first with the
families, and the youth referred by the judge would meet after that.
Caseworkers meeting with the youth in question learned that his
brain injury was significant and had occurred at the age of 10. He
had initially been involved in some support groups offered by the
Brain Injury Association but had slowly stopped participating in
those. As well, he had withdrawn from most activities and had
stopped attending school. It became clear that the family was
overwhelmed with the situation and unsure of how to get this
youth redirected and connected to supportive services.
Caseworkers made contact with the Brain Injury Association, and
one of their members agreed to participate in the restorative justice
session and to explore ways to provide support to the youth and
the family.
As part of the preparation process, the victims learned a little more
about the familys situation and the challenges facing this youth.
This helped them to understand that he was not purposely
targeting their children, but had been involved in an unfortunate
incident where his actions caused harm to others. The session
went forward, with two families only, the youth and his parents,
and a representative from the Brain Injury Association, along with
the facilitators.
The outcome of the agreement was that the youth would apologize
to all of the families in a manner agreeable to them, perform 60
hours of community service work, volunteer with the local hockey
team, replace the damaged tires of the four-wheeler, and become
actively involved again in the support activities of the Brain Injury
Association. These recommendations were prepared as a proposed
disposition plan and were submitted to the judge for his
consideration. Upon sentencing, the judge included the proposed
disposition ideas developed through the Restorative Justice
Program and imposed, additionally, one year of probation in order
to ensure that the youth comply with all of the agreements and
support the firearms ban that had been imposed earlier.
One of the interesting outcomes of this case was that the victims,
who had originally been so afraid of these youths, came to see
them as young men whose actions were unacceptable but who
were, indeed, members of their community. All of the young men
made personal apologies to the victims and to the victims families
by writing or visiting them in their driveways over a period of
several afternoons. All three youths completed all aspects of their
agreements, and the victims were satisfied that the incident had a
productive outcome. The parents of the youth who was actually
fired at reported that they were very satisfied with the outcome:
deciding to become involved helped them with their feelings of
powerlessness, and confronting the youths gave them a chance to
see that the youths posed no ongoing threat to their child. This
gave them back their peace of mind.
THE RESTORATIVE JUSTICE PROGRAM
In Nova Scotia, the provisions for Formal Cautions under Extra
Judicial Measures and the Provisions for Extra Judicial Sanctions
are met through the Restorative Justice Program.
The Restorative Justice Programoffers an option that provides a
community based approach to holding offenders accountable,
giving victims and communities a voice in the response to crime.
The Program provides for referral options at four entry points:
Police Entry Point: pre charge referral by police officers
Crown Entry Point: post charge/pre conviction referral by
Crown Attorneys
Court Entry Point: post conviction/pre sentence referral
by Judges
Corrections Entry Point: Post Sentence referral by
Correctional Services of Victims Services
The Program is delivered by a network of eight Community Justice
Agencies, which have contracted with the Department of Justice to
provide the Restorative Justice Program. Additionally, the RCMP
have developed their own pre charge program, which complies
with the Provincial Program, and is available at most detachments.
Police Use of the Restorative Justice Program
Police must complete a Restorative Justice checklist on all Level 1
or Level 2 offences whether proceeding by way of a formal caution,
referral to the Restorative Justice Program or laying a charge (See
table of Offences)
Formal Cautions
q can be issued for Level 1 offences only
q police must issue a Formal Letter of Caution to youth and
parent/guardian
q police must inform the victim(s) in the case that the matter is
being dealt with by way of a Formal Caution
q Formal Caution is posted by police on CPIC , under special
interest to police category
q The first five sections of the Restorative Justice Checklist must
be completed
Pre Charge referrals to the Restorative Justice Program
q Police can refer the youth to the Restorative Justice Program for
Extra Judicial Sanctions in two ways:
q Refer to the local community justice agency providing
services under the Provincial Restorative Justice Program
q Only Level 1 or Level 2 offences can be referred pre charge by
police
q Each referral must be accompanied by a completed Restorative
Justice checklist, which verifies that the case meets the minimum
requirements established for the Program (See minimum
requirements)
Post Charge Referrals by Crown Attorneys
q Police are required to provide a completed checklist with all
Crown Disclosure Packages for Level 1 and Level 2 offences.
q Where a Crown Attorney determines that a referral to the
program will be made post charge, this is done by completing the
Crown Attorneys portion of of the police generated Restorative
Justice Checklist
Example 1
A youth went into Zellers and proceeded to the Sporting Goods
Department where he concealed a baseball in his backpack and
proceeded to exit without paying. Security apprehended the youth
who admitted it was his first time doing anything like this. Security
has phoned the police and you are now on the scene. Zellers has a
pro-prosecution stance on thefts.
Possible options:
My choice:
Example 2
You were called to an altercation outside a youth centre. A youth,
encouraged by others, has put a beating on another youth. The
ambulance has been called as the youth who was assaulted is
bleeding from the mouth and complains his jaw is intensely
painful. Further information reveals a longstanding dispute
between these youths. This isnt the first time their dispute has led
to violence.
Possible options:
My choice:
Example 3
Three girls break into a school which had been equipped with a
new computer centre. Missing were well over a dozen items,
including computer hard drives, DVD and video equipment, digital
cameras and scanners. The total value of these items was $25,000.
The theft caused a great deal of stress to the community, parents
and children at the school. The girls were remorseful, and they and
their parents assisted in recovering all but one computer, which
had been dropped and was broken.
Possible options:
My choice:
Example 4
A youth currently in Waterville Youth Centre is thinking about
returning home as he reaches the end of his period of custody. He
is dreading returning to his small community and unsure of how he
will face the youth he assaulted, to whom he has never made an
apology.
Possible options:
My choice:
7.36 Section 7: Restorative Justice Program Section 7: Restorative Justice Program 7.36 7.36 Section 7: Restorative Justice Program

YCJA Participant Overview

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YCJA Participant Overview

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SECTION 1

Overview of the YCJA

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