This document was prepared
by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians
with plain language background and analysis of proposed government legislation.
Legislative summaries are not government documents. They have no official legal status and
do not constitute legal advice or opinion. Please note, the Legislative Summary describes
the bill as of the date shown at the beginning of the document. For the latest published
version of the bill, please consult the parliamentary internet site at www.parl.gc.ca.
LS-356E
BILL C-3: THE YOUTH CRIMINAL JUSTICE ACT
Prepared by:
Kristen Douglas, David Goetz
Law and Government Division
21 February 2000
LEGISLATIVE HISTORY OF BILL C-3
HOUSE OF COMMONS |
SENATE |
Bill Stage |
Date |
Bill Stage |
Date |
First Reading: |
14 October 1999 |
First Reading: |
|
Second Reading: |
23 November 1999 |
Second Reading: |
|
Committee Report: |
|
Committee Report: |
|
Report Stage: |
|
Report Stage: |
|
Third Reading: |
|
Third Reading: |
|
Royal Assent:
Statutes of Canada
N.B. Any substantive changes in this Legislative Summary which have
been made since the preceding issue are indicated in bold print.
|
TABLE OF CONTENTS
BACKGROUND
DESCRIPTION
AND ANALYSIS
A. Preamble, Definitions and Principle
1. Preamble
2.
Definitions (Clause 2)
3.
Declaration of Principle (Clause 3)
B. Part 1: Extrajudicial Measures
1.
Introduction
2.
Principles and Objectives
3. Warnings,
Cautions and Referrals
4.
Extrajudicial Sanctions
C. Part 2: Organization of Youth Criminal Justice System
1.
Introduction
2. Youth Justice
Courts
3. Youth Justice
Committees
4.
Conferences
5. Justices of
the Peace and Youth Justice Court Clerks
6.
Provincial Directors
D. Part 3: Judicial Measures
1. Pre-Charge Screening
2. Right to Counsel
3. Notices to
Parents
4. Pre-Trial
Detention
a. Introduction
b.
Rules Governing the Pre-Trial Detention of Young Persons
c. Pre-Trial Detention of Adults Subject to the Youth Criminal
Justice System
d. Placement with "Responsible Person" as Alternative to
Detention
e.
Review of Bail Decisions
5.
Appearance
6. Medical and
Psychological Reports
7.
Adjudication
8. Appeals
E. Part 4: Sentencing
1.
Introduction
2. Purposes
and Principles
a. Introduction
b. Purpose and Principles of Youth Sentencing
c. Principles Applicable to Custodial Youth Sentences
3.
Pre-Sentence Report
4. Youth Sentences
a. Overview
b. Sentencing Inputs
c. Possible Youth Sentences
d.
Youth Sentence for Murder
e. Intensive Rehabilitative Custody and Supervision
f. "Serious Violent Offence" Determination
g.
Total Duration of Youth Sentences
h. Additional Custody Sentences
i. Continuous vs Intermittent Custody
j. Reasons for Sentence
k. Non-Application of Criminal Code Sentencing
Provisions
l. Weapons Prohibitions
m. Allocation of Funds for Victim Assistance
n.
Orders with Conditions for Conduct
i. Terms and Conditions
ii. Variation of Order
iii. Breach of Order
o. Transfer of Sentences
p.
Review of Non-Custodial Sentences
5. Adult Sentences
a. Overview
b. Application by Young Person against Adult Sentence
c. Application / Notice by Attorney General for Adult Sentence
d. Election as to Mode of Trial
e. Determination re Liability to Adult Sentence
f.
Young Person Sentenced to Imprisonment
6. Effect of
Termination of Youth Sentences
F. Part 5: Custody and Supervision
1. Purpose and
Principles of Youth Custody and Supervision
a. General Purpose and Principles
b. Separation of Youth from Adult Offenders
2. Level of Custody
3. Persons Age
20 or over at Time of Sentencing
4. Youth Workers
5.
Reintegration Leave
6. Transfer /
Placement into Adult Facility
7. Review of
Custodial Youth Sentences and Early Release
a. Introduction
b. Review of Custodial Youth Sentences
c. Review of Other Orders
8. Release on
Completion of the Custodial Portion
a. Conditions for Supervision
b. Conditions for Conditional Supervision
9. Detention
beyond the Custodial Portion
a. Application by Provincial Director
b. Application by Attorney General
c. Review of Order by Court of Appeal
10. Breach of
Conditions
G. Part 6: Publication, Records and Information
1.
Introduction
2.
Protection of Privacy of Young Persons
3.
Fingerprints and Photographs
4. Records
That Might Be Kept
5. Access to
Records
H. Part 7: General Provisions
1.
Exclusion from Hearing
2. Offences
and Punishment
a. Overview
b. Interference with Youth Sentence
c. Failure to Comply with Youth Sentence
d.
Breach of Publication, Records and Information Provisions
e.
Breach of Pre-Sentencing Detention Provisions
f. Use
of Prohibited Employment Application Form
3.
Application of the Criminal Code
a. General Applicability of Criminal Code Provisions
b.
Mental Disorder
c. Summary Conviction Procedures
4. Evidence
a. Admissibility of Statements
i. Statements to Persons in Authority
ii. Statements during Pre-Sentence
Assessments
b. Establishing the Age of the Accused
5. Creation
and Funding of Programs
6.
Miscellaneous
COMMENTARY
BILL C-3: THE YOUTH CRIMINAL
JUSTICE ACT
BACKGROUND
Bill C-3, the Youth Criminal
Justice Act (YCJA), was introduced in the House of Commons on 14 October 1999 by the
Honourable Anne McLellan, Minister of Justice. The bill is essentially the same as Bill
C-68, first introduced in the previous parliamentary session on 11 March 1999. Bill
C-3 would repeal and replace the Young Offenders Act (YOA), adopted by Parliament
in 1982, in force since 1984, and amended in 1986, 1992, and 1995. (This Act had itself
replaced the 1908 Juvenile Delinquents Act.(1))
Bill C-3 was developed and based upon A Strategy for the Renewal of Youth Justice,
released by the government in May 1998 as its response to Renewing Youth Justice,
the April 1997 Report of the House of Commons Standing Committee on Justice and Legal
Affairs.
DESCRIPTION AND ANALYSIS
A. Preamble, Definitions and Principles
1. Preamble
The bill includes a Preamble
setting out the context within which Parliament is legislating, including a description of
the broad social issues it is addressing and the legislative goals it expects to achieve.
In recent years, Parliament has more frequently had recourse to preambles and other
similar legislative techniques to indicate to government institutions, the courts and
Canadians how it expects its legislation to be interpreted and applied. Similar goals are
pursued by the use of legislative statements of purposes, principles, objectives, and
factors to be considered. This bill uses these legislative techniques in several different
contexts.
The Preamble contains five
declarations or assertions that aim to put the rest of the bill into a policy context. The
first statement asserts that, to protect the community, the youth criminal justice system
must command respect, foster responsibility, and ensure accountability through meaningful
consequences and effective rehabilitation and reintegration. The system is to reserve its
most serious interventions for the most serious crimes, and to reduce the present
over-reliance on incarceration for non-violent young persons. The second statement asserts
that the objectives in the first statement could best be achieved by a new legal framework
to replace the YOA.
The third Preamble statement
holds that the community shares a responsibility to deal with the developmental needs of
young persons and to guide them into adulthood. Consequently, according to the fourth
statement, communities, families, parents and others should adopt multi-disciplinary
approaches to prevent youth crime by dealing with its underlying causes, responding to the
needs of young persons, and providing guidance and support to those at risk of criminal
offending.
Finally, the Preamble recalls
that Canada is a party to the United Nations Convention on the Rights of the Child
and recognizes that young persons, in addition to the constitutional protections available
to all Canadians, have special guarantees of their rights and freedoms.
Although the YOA contains a
Declaration of Principle in section 3, it does not include a Preamble as such.
2. Definitions (Clause 2)
Clause 2 of the bill contains a
number of definitions essential to the application of the proposed law. Many key terms and
their definitions particularly those that relate to the scope of application of the
statute are the same as in the YOA; for example, the definitions of the terms
"child," "young person," and "adult," would continue to
restrict the application the Act to persons between the ages of twelve and eighteen years.
Also, the term "offence" would continue to mean an offence created by an Act of
Parliament or by a regulation, rule, order, by-law, or ordinance of an Act of Parliament,
other than an ordinance of the Yukon Territory or Northwest Territories. Clause 2 would
amend this definition only to add a reference to offences created by the new Nunavut
Legislature to those that would be excluded from the meaning of "offence" under
the Act. As under the current YOA, young persons who committed provincial or territorial
offences would have to be dealt with under applicable provincial or territorial
legislation.
Clause 2 would also add some new
definitions of terms arising from other proposed changes to the legislation. For example,
the term "presumptive offence" would be used for offences for which an adult
sentence was presumed to be appropriate. "Presumptive offence" would include the
four offences currently set out in the presumptive transfer provision of section 16(1.01)
of the YOA; that is, first or second degree murder, attempted murder, manslaughter, and
aggravated sexual assault. It would also include a serious violent offence for which an
adult could be sentenced to a term of imprisonment in excess of two years if, prior to the
commission of that offence, at least two different judicial determinations had been made
that the young person had committed a serious violent offence. Clause 2 would also add the
new terms "violent offence" (one that causes or creates a substantial risk of
causing bodily harm); "serious violent offence" (one that causes or
creates a substantial risk of causing serious bodily harm); and "non-violent
offence."
Finally, some of the current
terms used and defined in the legislation would be altered. The term "alternative
measures" would be replaced by "extrajudicial measures," although the
definition would remain the same. This is also the case for the term
"disposition," which would be replaced with the term "youth sentence,"
highlighting that, while the consequences may not be the same, young offenders are, like
adults, being held accountable under the law for their offending behaviour. The term
"ordinary court" and its definition would be eliminated from the Act; this would
follow the proposed elimination of the provisions for the transfer of certain young
offender cases to the adult criminal justice system. In their place, Bill C-3 would give
youth justice courts (the proposed new title for "youth court") access to adult
sentences in certain circumstances.
3. Declaration of Principle (Clause 3)
Clause 3 of the bill sets out in
general terms Parliaments legislative intention in enacting Bill C-3. Unlike the
Preamble, the Declaration of Principle enunciated in clause 3 would be contained within
the body of the legislation, thus giving it more interpretative weight in enunciating the
values to be respected in the administration and application of the proposed law.
Clause 3(1) contains four
interlinked and ranked statements of principle. The first asserts that the principal goal
of the youth criminal justice system is to protect the public by preventing crime,
ensuring there are meaningful consequences to offences committed, and rehabilitating young
offenders so as to reintegrate them into the community. The second set of principles would
establish that the youth criminal justice system is to be separate from that of adults and
to emphasize fair and proportionate accountability, enhanced procedural protection, and a
greater emphasis on rehabilitation and reintegration.
The third set of principles would
establish that, within the limits of fair and proportionate accountability, the measures
taken against young persons who commit offences should: reinforce respect for community
values; encourage repair of harm done to victims and the community; be meaningful; respect
gender, ethnic, cultural and linguistic differences; and respond to the needs of young
persons with special requirements. The final set of principles would establish that
special considerations apply in respect of proceedings against young persons; more
specifically: that young persons have rights and freedoms in their own right; that victims
should be treated with courtesy, compassion, and respect; that victims should be provided
with information; and that parents should be kept informed and encouraged to support their
children in addressing their offending behaviour.
Many of these same principles can
be found in section 3(1) of the YOA, except that the new Declaration of Principle proposed
in clause 3(1) attempts to give priority to a particular sub-set of the principles
enunciated. The current Declaration of Principle in the YOA has been criticized on the
grounds that some of the principles conflict with others and that the Act itself provides
no clear basis for resolving such conflicts. Clause 3(1)(a) identifies the protection of
the public as "the principal goal of the youth criminal justice system"; the
clause does, however, go on to specify that the appropriate avenues for the protection of
society are preventative policies that seek to address the underlying circumstances
contributing to offending behaviour by young persons and, where prevention has not worked,
that young offenders be subject to "meaningful consequences" for their offences,
with an emphasis on rehabilitation and reintegration. Clause 3(1)(a) appears to speak to a
long-term conception of public protection.
Overall, the proposed new
Declaration of Principle appears to reflect a shift away from considerations, such as
societys denunciation of offending behaviour, and the short-term protection of the
public from specific offenders, that tend to favour custodial dispositions for young
offenders. In general, the new Declaration of Principle proposed in clause 3(1) of the
bill is consistent with the recommendations of the House of Commons Justice and Legal
Affairs Committee in its 1997 report.(2)
The other major difference from
the current Declaration of Principle in the YOA would be the addition in clause 3(1)(d) of
references to the needs, interests and role of victims in the youth justice system.
Like section 3(2) of the current
Act, clause 3(2) of the bill would require that the legislation be "liberally
construed" in accordance with the Declaration of Principle.
B. Part 1: Extrajudicial Measures
1.
Introduction
Part 1 of Bill C-3 deals with
"extrajudicial measures," the proposed new term for what are currently known as
"alternative measures" under the YOA, whereby young persons can be held
accountable for their offending behaviour without proceeding with a formal charge through
the courts. Out-of-court responses, such as police warnings, cautioning, referral to
community programs, apologies to victims, acknowledgement and reparation of damage, and
community service work, are seen as providing more meaningful consequences for much youth
crime, as well as being faster and less costly than interventions through the formal court
system. Moreover, providing for such non-judicial alternatives is in keeping with
Canadas obligations under the United Nations Convention on the Rights of the
Child (see article 40(3)(b) of the Convention). Recent studies have shown that, in
comparison with countries such as the United States, the United Kingdom, Australia, and
New Zealand, Canada has been under-utilizing such measures and has thus tended to divert
fewer youth crime cases from the formal court system.(3)
Part 1 of the bill seeks to
address a recommendation of the 1997 House of Commons Justice Committee report for reform
of the youth justice system to accommodate various alternatives to court proceedings.(4) The provinces would, however, retain considerable
flexibility with respect to the specific details of the various extrajudicial measures and
the extent to which they would implement them.
While the YOA currently makes
provision for alternatives to formal court proceedings, it provides little guidance as to
their precise nature, when they are likely to be most appropriate, who should decide on
their use, and what they should aim to achieve. Bill C-3 seeks to fill this gap by
providing a more detailed and structured framework for the use of these non-judicial
measures. Under alternative measures in the present legislation, some act, such as
community service work, is performed in consideration for which a charge is withdrawn by
the prosecution. Bill C-3 would expressly incorporate less formal responses such as
police warnings, cautioning, and referral to community programs which could be
applied even more quickly, without any charge being laid. Some of these informal
alternatives have always been available to police; however, there is some evidence that
the exercise of police discretion in deciding not to lay charges has declined in recent
years.(5) Bill C-3 would confer statutory recognition on
these less formal non-judicial responses to youth offending behaviour, oblige police to
consider their suitability in each case, and would create a presumption of their
suitability with respect to non-violent first offenders.
2. Principles and Objectives
Part 1 of the bill first sets out
a series of principles and objectives which are intended to animate and inform the
thinking of those involved in the design and application of extrajudicial measures
(primarily, provincial justice ministries, police and prosecutors). Clause 4 declares that
the following principles would be applicable to this Part of the bill:
- extrajudicial measures are often the most
appropriate and effective way to address youth crime;
- extrajudicial measures allow for effective and
timely interventions focusing on the correction of offending behaviour;
- in the case of a non-violent offender with no
previous convictions, extrajudicial measures are to be presumed to be adequate to hold the
young person accountable for his or her actions; and
- extrajudicial measures should be used whenever
they are sufficient to hold the young person accountable for offending behaviour,
notwithstanding that the young person may have committed previous offences.
Clause 5 sets out objectives for
extrajudicial measures; they should:
- provide an effective and timely non-judicial
response to offending behaviour;
- encourage young persons to acknowledge and repair
the harm caused to the victim and the community;
- encourage families of young persons to be involved
in the design and implementation of the measures;
- provide an opportunity for victim participation in
decisions on the measures selected and to receive reparation; and
- respect the rights and freedoms of young persons
and be proportionate to the seriousness of the offence.
3. Warnings, Cautions and Referrals
The bill proposes two broad
categories of extrajudicial measures: warnings, cautions, and referrals to community-based
programs, for less serious cases; and "extrajudicial sanctions," for more
serious cases.
Clause 6(1) of the bill would
require police first to consider, in light of the principles set out in clause 4 (above),
the appropriateness of a warning, caution (if available see below), or program
referral, before proceeding with a formal charge or with extrajudicial sanctions. Failure
to follow clause 6(1) would not, however, invalidate any charge laid against the young
person (clause 6(2)).
The availability of cautioning by
police or prosecutors as an extrajudicial measure would depend on having such programs
established by the provincial and federal attorneys general pursuant to clauses 7 and 8.
Unlike a mere "warning" given immediately by police on the spot or at the young
persons home, a "caution" would generally take place later at a police
station or prosecutors office and might involve an apology by the offender to the
victim.
However, the bill does not
indicate any specific meaning for "warning" or "caution," or the
distinction between them.
Under clause 9, evidence that any
offence had been dealt with by way of a warning, caution, or referral, or evidence that
police had taken no further action in respect of an offence, would not be admissible as
proof of prior offending behaviour by a young person in any youth justice court
proceedings with respect to that young person. This restriction would relate primarily to
sentencing hearings for any subsequent offences.
4. Extrajudicial Sanctions
Where a warning, caution, or
referral was not thought adequate to deal with a young person (because of the seriousness
of the offence, the nature and number of previous offences, or any other aggravating
factor), recourse could be had to extrajudicial sanctions (clause 10(1)). Extrajudicial
sanctions would correspond to the current model of "alternative measures" under
the YOA. They would represent a more serious and formal response than the other
extrajudicial measures. As under the current legislation, extrajudicial sanctions would
operate like a conditional discharge, but without any adjudication of guilt. Provided the
young person fulfilled certain conditions such as reparation of damage caused to
the victim or community service work the criminal charge would be withdrawn or
dismissed.
As with the other extrajudicial
measures, the bill is silent as to the precise nature of the sanctions envisioned. These
details would be left to the provinces. The bill would, however, continue to stipulate
conditions and restrictions on the use and effect of extrajudicial sanctions. These would
be the same as those currently applicable to alternative measures under the YOA (see: YOA,
section 4; and Bill C-3, clauses 10(2) to 10(6)):
- an extrajudicial sanction must be part of a
program of sanctions authorized by the Attorney General or persons designated by the
lieutenant governor in council of the province;
- an extrajudicial sanction must be an appropriate
response, with regard to the needs of the young person and the interests of society;
- the young person must fully and freely consent to
be subject to the extrajudicial sanction;
- before consenting to an extrajudicial sanction, a
young person must be advised of his or her right to legal representation and be given the
opportunity to consult counsel;
- the young person must first accept responsibility
for the act or omission that forms the basis of the offence;
- there must be, in the opinion of the prosecution,
sufficient evidence to justify proceeding with the prosecution;
- prosecution of the offence must not be legally
barred;
- the young person must not deny involvement in the
offence;
- the young person must not express the wish to have
the charge dealt with by the court;
- no admission of guilt made by a young person as a
condition of being dealt with by an extrajudicial sanction is admissible against a young
person in any civil or criminal proceedings;
- the use of an extrajudicial sanction is not a bar
to prosecution or judicial proceedings against the young person, except to the extent that
the young person has complied with the terms and conditions of the sanction.
The bill would also provide that
certain third parties would be informed of the use of extrajudicial sanctions. Clause 11
would require the oral or written notification of the parents of the young person and
clause 12 would give the victim the right to be informed of the young persons
identity and of the sanction applied.
C. Part 2: Organization of Youth Criminal Justice System
1.
Introduction
Part 2 of Bill C-3 would provide
a statutory basis for the existence and powers of certain key actors in the youth criminal
justice system.
2. Youth Justice Courts
Clause 13 would provide for the
designation of "youth justice courts," either by provincial legislation or by
the provincial or federal executives. A judge of a court so designated would be a youth
justice court judge. This would replicate existing provisions in the YOA, except that the
name of the courts designated for young offender cases would be changed from "youth
court" to "youth justice court."
Clause 13 would also provide that
other criminal courts, which would otherwise be adult courts, would be deemed to be
youth justice courts for the purposes of any youth cases before them. Instead of providing
for the transfer of certain serious youth cases to the adult criminal justice system, as
is done under the YOA, Bill C-3 would make adult sentences available within the youth
court system. To do this, however, young offenders would have to be allowed the options of
preliminary inquiries and jury trials, which are available in the adult system in serious
cases, but which are currently unavailable in the youth court system, except in the case
of murder. Designated youth justice courts would generally consist of
"inferior" courts presided over by provincially appointed judges. However, these
types of courts do not generally have the jurisdiction to try criminal cases where there
has been a preliminary inquiry(6) and they never conduct
jury trials. Clause 13 would, therefore, permit federally appointed superior court judges,
who already have the jurisdiction to try such cases, to sit as youth justice court judges,
retaining their powers as superior court judges (under clause 14(7)).
As with the current YOA, the
youth criminal justice system would retain jurisdiction over adults in respect of alleged
offences committed while they were under 18 years of age. Clause 14 would give youth
justice courts exclusive jurisdiction over federal offences allegedly committed by persons
between the ages of 12 and 17 inclusive, with the exception of regulatory offences dealt
with under the Contraventions Act and offences subject to military jurisdiction
under the National Defence Act. Clause 14 would also expressly confer jurisdiction
on youth justice courts to make preventative orders such as peace bonds. As is the case
with youth courts under the YOA, youth justice court judges under Bill C-3 would, for the
purposes of carrying out the provisions of the legislation, be considered to be provincial
court judges or justices of the peace and would have the jurisdiction and powers of a
summary conviction court under the Criminal Code. Superior courts deemed to be
youth justice courts under Bill C-3 would, however, also retain their jurisdiction and
powers as a superior court.
As with the YOA, Bill C-3 would
preclude extrajudicial measures or judicial proceedings from being taken in respect of any
offence after the expiry of any applicable limitation period. Unlike section 5(2) of the
YOA, however, clause 14(3) of the bill would provide an exception to this general
prohibition where the Crown prosecutor and the young person agreed. Thus, the prosecution
would be able to proceed summarily in cases where it would otherwise be forced to proceed
by indictment in order to retain the ability to prosecute.
Clause 15 of the bill would deal
with contempt of court in the youth justice system, for the most part, re-enacting the
current provisions on contempt set out in section 47 of the YOA. A youth justice court
would have the same powers to deal with contempt of court as a superior court judge in
that province; youth justice courts would have jurisdiction over any contempt by a young
person against any court, and over contempts committed in the face of a youth justice
court by an adult; a young person convicted of contempt of court would be subject to a
youth sentence under Part 4 of the bill; section 708 of the Criminal Code would
apply to contempt proceedings against adults in the youth justice courts. This last
provision would enable youth justice courts to deal summarily with adult witnesses who
failed to attend or remain at youth justice court proceedings when legally required to do
so, and to impose fines of up to $100, imprisonment for up to 90 days, or both, in such
cases. Unlike the current youth courts, however, the proposed youth justice courts would
not necessarily have any exclusive jurisdiction over contempts committed by young
persons.
Clause 16, dealing with the
jurisdictional problem that arises when an offence charged is alleged to have been
committed during a period that includes the accuseds 18th birthday, would confer
jurisdiction on the youth justice court in such cases. Where it was proven during the
proceedings that the offence had in fact been committed after the accused had attained the
age of 18, the youth justice court would be free to sentence the accused as an adult.
Clause 17 would replicate section
68 of the YOA to confer on the judges of the youth justice courts in each province the
power to make rules for the youth justice courts on matters such as: the duties of the
officers of the court; practice and procedure before the court; the forms to be used; and
any other appropriate matter "considered expedient to attain the ends of
justice." Such rules of court would be subject to any regulations made by the
Governor in Council under clause 154. As with such rules under the YOA, rules of court
made under clause 17 would have to be approved by the provincial lieutenant governor
in council and be published in the provincial gazette.
3. Youth Justice Committees
Section 69 of the YOA provides
for the creation of youth justice committees, which are committees of citizens appointed
to assist without remuneration in the administration of the Act or in any programs or
services for young offenders. The actual establishment of such committees is left to each
provincial attorney general, or such other minister as designated by the lieutenant
governor in council of the province, who is also responsible for specifying how committee
members are appointed and the functions of the committees.
Clause 18 of the bill would
retain this provision, but would remove the stipulation that committee members serve
without remuneration and would authorize the federal Attorney General to establish such
committees as well. Clause 18 would also provide specific legislative guidance as to the
functions of the committees. Pursuant to clause 18(2), youth justice committees could
perform the following functions:
- giving advice to the police or Crown attorneys on
the appropriate extrajudicial measure in a particular case;
- soliciting the concerns of the victim and
facilitating his or her reconciliation with the young person;
- ensuring that various community support resources
were available to the young person;
- helping to coordinate the interaction of the youth
criminal justice system with child protection agencies or community groups involved with
the young person;
- advising the federal and provincial governments on
compliance with the provisions of the legislation which grant rights to young persons or
provide for the protection of young persons;
- advising the federal and provincial governments on
youth criminal justice policies and procedures;
- providing information to the public on the
legislation and the youth criminal justice system;
- acting as a conference (see below); and
- any other functions assigned by the federal or
provincial attorney general.
By enhancing the legislative
emphasis on youth justice committees, and by emphasizing their potential role in
coordination between the youth criminal justice system and other institutions and systems
involved with young persons in the community (such as the education and child protection
systems), clause 18 of the bill would address key aspects of the 1997 Justice Committee
reports conclusions and recommendations. However, while that report seemed to favour
achieving coordination with these other institutions and systems through their
representation on the youth justice committees,(7) Bill
C-3 is silent as to the composition of these committees.
4. Conferences
As with youth justice committees,
conferences are intended to allow persons outside the court system to be involved in the
youth criminal justice system by formulating more creative community-based responses to
youth offending. However, unlike youth justice committees, conferences would generally be ad
hoc groups of individuals convened to deal with a specific case. Typically, a
conference would bring together in an informal setting the offender, his or her family,
the victim, and the victims supporters, with a view to an open discussion of the
offence and its impact, and arriving at a resolution, such as an apology, restitution, or
community service. The conference concept was inspired by family group conferencing
experiences in other countries, such as New Zealand and Australia, and successful
experiments in certain remote communities in Canada, as well as Aboriginal models of
community or "circle" sentencing. The 1997 House of Commons Justice Committee
report recommended that the youth criminal justice system be reformed to accommodate
alternative responses to youth crime, such as conferencing.(8)
Clause 19 of the bill would
provide a legislative basis for such conferences. Clause 19(1) would provide that
conferences could be convened by a youth justice court judge, the provincial director for
youth criminal justice (see below), a police officer, or any other person charged with
making a decision required under the legislation. Clause 19(2) suggests possible mandates
for such conferences: to give advice on extrajudicial measures, conditions for pre-trial
release, and sentences, including the review of sentences and reintegration plans (see
below, with respect to clauses 59, 89 and 93-95). As with the youth justice committees,
the bill leaves considerable flexibility as to the actual implementation of conferencing.
5. Justices of the Peace and Youth Justice Court
Clerks
Clauses 20 and 21 of the bill
would effectively re-enact existing YOA provisions dealing with the powers of justices of
the peace and youth court clerks (see YOA sections 6 and 65). The only change would be
clause 20(2), which would clarify that justices of the peace could conduct peace bond
proceedings against young persons under section 810 of the Criminal Code. However,
any failure or refusal by a young person to comply with an order by a justice of the peace
to enter into a recognizance (peace bond) would have to be referred to a youth justice
court.
6. Provincial Directors
Provincial directors are persons,
groups of persons, or bodies appointed or designated by the provinces to perform the
duties assigned to provincial directors under the YOA: overseeing aspects of the youth
criminal justice system, such as detention and custody of young persons, pre-sentencing
assessments, administration of supervision or probation orders, and the review of
dispositions. Bill C-3 would retain this position and, in clause 22, would effectively
re-enact section 2.1 of the YOA which permits provincial directors to authorize other
persons to perform their duties and functions under the legislation on their behalf.
D. Part 3: Judicial Measures
1. Pre-Charge Screening
Clause 23 would permit pre-charge
screening programs to be established by the various provincial and federal attorneys
general. The purpose of such programs is to divert cases away from the formal judicial
process where a lesser response, such as extrajudicial measures (currently,
"alternative measures") would be adequate. For the most part, this provision
would merely provide a federal statutory framework for and recognition of pre-charge
screening and diversion programs that already exist.
Clause 24 would ensure that the
opportunity to screen appropriate cases out of the formal judicial process extended to
private prosecutions, by requiring that the relevant attorney generals office
consent to any such prosecutions.
2. Right to Counsel
Section 10(b) of the Canadian
Charter of Rights and Freedoms guarantees to every person who is arrested or detained
the right "to retain and instruct counsel without delay and to be informed of that
right." Section 11 of the YOA expands upon this basic guarantee by specifying in
greater detail young persons right to counsel in the youth criminal justice system,
and how that system is to give effect to that right. Clause 25 of the bill would
essentially replicate the provisions of section 11 of the YOA.
There would be a general
statement of a young persons right to retain and instruct counsel, and to do so
personally (i.e., this right need not be exercised through a parent or guardian even
though it may involve a contractual relationship), at any stage of proceedings against the
young person, including before or during any consideration as to the appropriateness of an
extrajudicial sanction as an alternative to judicial proceedings (clause 25(1)).
Clause 25 goes on to propose that
young persons would have to be advised of their right to counsel, and be given a
reasonable opportunity to exercise that right at specific points in the youth criminal
justice process. The police would be required to conform with this provision upon the
arrest or detention of a young person (clause 25(2)). Thereafter, courts or review boards
conducting various proceedings under the bill would likewise have to advise the young
person of his or her right to counsel, unless the young person was already represented
(clause 25(3)).
Where a young person wished to
obtain legal counsel, but was unable to do so, courts or review boards conducting
proceedings would have to refer him or her to the provinces legal aid program for
the appointment of counsel (clauses 25(4)(a) and 25(6)(a)). If no legal aid program was
available to the young person, or if the young person was unable to obtain counsel through
the program, the court or review board would have to direct that he or she be represented
by counsel (clauses 25(4)(b) and 25(6)(b)) to be appointed by the provincial attorney
generals office (clause 25(5)).
Clause 25(7) would provide that a
court or review board could permit the young person, at his or her request, to be assisted
by an adult whom it considered to be suitable, rather than by legal counsel.
Clause 25(9) would provide that a
statement of the young persons right to be represented by counsel would have to be
included in various documents issued in connection with the proceedings against the young
person.
The courts would also continue to
be responsible for ensuring that a young person was represented by counsel independent of
the young persons parent, where it appeared that there was a conflict of interest
between the parent and the young person or that this would be in the best interests of the
young person (clause 25(8)).
Clause 25 would also add two new
provisions on young persons right to counsel in the youth criminal justice system.
Clause 25(10) would clarify that nothing in the bill would prevent a province from
establishing a program for the recovery of the costs of such counsel from the young person
or from his or her parents; however, such costs could be recovered only after all the
proceedings in the case had been completed. Clause 25(11) would restrict the application
of certain of the above requirements to accused persons under 20 years of age at the time
of their first appearance before the youth justice court in respect of an offence.
3. Notices to Parents
In order to reinforce the
principle of parental responsibility, the YOA includes provisions requiring that parents
be notified when young persons become involved with the youth criminal justice system,
and, in some cases, that parents attend youth court proceedings. These provisions
(sections 9 and 10) of the YOA would be preserved in clauses 26 and 27 of Bill C-3.
Clause 26(1) would require a
young persons parent to be notified as soon as possible when the young person was
arrested and detained pending a court appearance. In cases where the young person was
issued a summons or an appearance notice, or was released by police pending a court
appearance, clause 26(2) would require the police to give a parent written notice of the
summons, appearance notice, promise to appear, undertaking, or recognizance, as the case
might be. Under a new provision, clause 26(3), a parent would also have to be given
written notice of any ticket issued to a young person under the Contraventions Act
(which deals with federal regulatory offences).
In cases where no parent appeared
to be available, any notice under clause 26 could be given to any adult relative who was
known to the young person and was likely to assist him or her. Where no such relative was
available, notice could be given to another appropriate adult known to the young person
and likely to be of assistance. Where there was doubt as to who should be given a notice
under clause 26, clause 26(5) would allow the court to decide the issue.
Generally, the failure to give
the notices required under clause 26 would not affect the validity of proceedings under
the bill (clause 26(9)); however, where the notices were not given, and none of the
persons to whom such notice could be given attended court with the young person, the court
would have to either: adjourn the proceedings so that notice could be given as the court
directed; or dispense with the notice, if the court deemed it appropriate (clauses 26(10)
and (11)).
In a new provision, clause 26(12)
would restrict the application of the parental notification requirements to cases where
the accused was less than 20 years of age at the time of his or her first appearance
before a youth justice court in respect of the offence in question.
Where a youth justice court was
of the opinion that the attendance of a young persons parent was necessary or in the
young persons best interest, the court could order such attendance at any stage of
the proceedings (clause 27). A parent who failed to attend as required by the youth
justice court, without lawful excuse, would be liable to be summarily convicted and
punished for contempt. Clause 27 would not apply to proceedings commenced by ticket under
the Contraventions Act.
4. Pre-Trial Detention
a. Introduction
Notwithstanding the presumption
of innocence, the criminal justice system recognizes the need for the pre-trial detention
of accused persons in some cases. In both the adult and youth criminal justice systems,
pre-trial detention is aimed at: ensuring the accuseds future attendance in court to
deal with the charge; the protection or safety of the public, including the prevention of
further criminal offences; and ensuring the integrity of the administration of justice. As
a general matter, the onus is on the prosecution to show that pre-trial detention is
necessary; however, the onus to avoid pre-trial detention shifts to the accused where he
or she is charged with: certain serious indictable offences; any indictable offence where
the accused is not ordinarily resident in Canada; any indictable offence committed while
the accused had other criminal charges pending; or breaching conditions of pre-trial
release.
The bill would, with some minor
refinements, retain the provisions on pre-trial detention of young persons set out in
section 7 of the YOA.
b. Rules Governing the Pre-Trial Detention of Young
Persons
A new provision, clause 28, would
clarify that, except as inconsistent with or excluded by the bill, the provisions of Part
XVI of the Criminal Code that apply to the judicial interim release and pre-trial
detention of adults would also apply to young persons.
Another new provision, clause 29,
is aimed at situations where the courts might be making inappropriate use of pre-trial
detention in respect of young persons. Clause 29(1) would stipulate that young persons
must not be subject to pre-trial detention as a substitute for appropriate child
protection, mental health or other social measures. Under clause 29(2), a presumption
would be created that the pre-trial detention of a young person was not necessary to
protect the public where the young person could not be sentenced to custody if convicted
of the offence charged. This presumption would not prevail, however, where there was a
substantial likelihood that the young person would, if released, commit a criminal offence
or interfere with the administration of justice. It is not clear how this new presumption
would differ from the test that would otherwise be applicable in such cases under Part XVI
of the Criminal Code.
Young persons who were arrested
and detained prior to sentencing would be detained separate and apart from adults (clause
30(3)) in facilities provincially designated for temporary detention (as opposed to
facilities for persons actually serving sentences of imprisonment) (clause 30(1)).
However, these restrictions would not apply where a young person was being temporarily
restrained after arrest and was under the supervision and control of a peace officer
(clause 30(7)). Moreover, young persons could be detained with adults where a youth
justice court judge or a justice of the peace was satisfied that: having regard to the
young persons safety or the safety of others, he or she could not be detained in a
place of detention for young persons; or there was no such place of detention within a
reasonable distance (clause 30(3)). In a change from section 7(2) of the YOA, clause 30(3)
of the bill would add that, in making such a determination, the court would have to have
regard for the best interests of the young person. This addition would bring Canadian law
on this subject more into line with the UN Convention on the Rights of the Child,
to which Canada is a party.(9)
Provincial directors would retain
the authority to transfer detained young persons from one place of temporary detention to
another (clause 30(6)). Also, the pre-trial detention of young persons would remain
subject to the decision of any provincially designated person or body whose authorization
was required in connection with the detention of a young person in the province (clause
30(8) and (9)).
c. Pre-Trial Detention of Adults Subject to
the Youth Criminal Justice System
Clauses 30(4) and (5) would add
new rules to provide for accused who were adults when subject to pre-trial detention under
the bill, or who became adults during this period. If a youth justice court considered it
to be in the best interests of the young person, it could order the transfer to an adult
facility of a young person who turned 18 while in pre-trial detention (clause 30(4)). Such
a transfer would only be on the application of the provincial director and only after the
young person had been given an opportunity to be heard. Accused persons who were 20 years
of age or older, and who were subject to pre-trial detention in respect of charges in the
youth justice court, would have to be detained in an adult facility (clause 30(5)).
d. Placement with "Responsible
Person" as Alternative to Detention
Clause 31 of the bill would
retain the YOA provisions for the placement of a young person in the care of a
"responsible person" as an alternative to pre-trial detention (see YOA section
7.1). This option would be open to the court in cases where the young person would
otherwise be detained and where both the young person and the responsible person were
willing to enter into such an arrangement. Written undertakings to comply with various
conditions would be required of both parties. Such a placement arrangement could be
terminated by order of the youth justice court on the application of either party or any
other person; in the latter case, the court would make an order relieving the parties of
their obligations under the arrangement and issue a warrant for the young persons
arrest. The young person would then be brought back before the youth justice court for a
bail hearing.
Clause 31 would make some changes
to these provisions. Clause 31(1) would specify that a director or employee of a program
for young persons could be a "responsible person" into whose care a young person
could be placed pending trial. Under clause 31(2), the judge or justice conducting a bail
hearing in respect of a young person would have to inquire as to the availability of a
responsible person for such a placement, before ordering the young persons detention
in custody. Finally, where such a placement arrangement was terminated and the young
person was brought back before the court, the court could simply substitute another
placement arrangement, rather than holding another bail hearing (clause 31(6)).
e. Review of Bail Decisions
With respect to the review of
orders releasing or detaining young persons before trial, the current YOA provisions
(section 8) would effectively be re-enacted in clause 33 of the bill.
Bail review proceedings for young
persons would, for the most part, be similar to those in the adult criminal justice
system, but with the involvement of an additional layer of judicial review in some cases.
An application to review a bail decision made by a justice of the peace or a provincial
court judge who was not a youth justice court judge would first be made to a youth justice
court, rather than directly to a judge of the provinces superior court of criminal
jurisdiction, as would be the case in the adult system (clauses 33(1) and (7)).
An application to review a bail
decision made by a youth justice court judge who was a superior court judge would be made
to a judge of the relevant court of appeal, except in Nunavut, where such a review would
be conducted by another judge of the Nunavut Court of Justice (clauses 33(5) and (6)).
In the case of an offence
referred to in section 522 of the Criminal Code which refers to indictable
offences that, in the adult system, can be tried only by a superior court of criminal
jurisdiction (the most important of which is murder) a young person could be
released only by a youth justice court judge (clause 33(8)). Any review of such a decision
would go to the court of appeal (clause 33(9)).
5. Appearance
As with section 12 of the YOA,
clause 32 of the bill provides that certain information must be formally conveyed to an
accused young person at the time of his or her first appearance in court to answer to a
criminal charge: the precise nature of the charge as set out in the information; the right
of the young person to be represented by counsel; and, if applicable, the prospect and
consequences of being dealt with as an adult if the young person is convicted (clause
32(1)). However, the young person can waive this requirement if his or her counsel advises
that the young person has been informed of these matters (clause 32(2)).
Clause 32(3) would provide that,
before accepting a plea to a charge from an unrepresented young person, the court would
have to: satisfy itself that the young person understood the charge; if applicable,
explain to the young person the consequences of being liable to an adult sentence and how
the young person could apply for the imposition of a youth sentence instead; and explain
to the young person that he or she could plead guilty or not guilty to the charge, or,
where the young person might be liable to an adult sentence if convicted, explain his or
her options as to the mode of trial. If not satisfied that the young person understood the
foregoing matters, the court would have to direct that the young person be represented by
counsel (clause 32(5)). If not satisfied that the young person understood the charge, the
court would have to enter a plea of not guilty and proceed with the trial, except where
the young person would be liable to an adult sentence and had to elect the mode of trial
(clause 32(4)).
6. Medical and Psychological Reports
The provisions of the YOA dealing
with medical, psychiatric, and psychological assessments of young persons (section 13)
would effectively be reproduced in clause 34 of Bill C-3 (except that references to
transfer proceedings would be replaced by references to the imposition of adult sentences
consistent with the new sentencing scheme proposed in Part 4 of the bill).
Pursuant to clause 34(2) of the
bill, court-ordered medical, psychiatric, or psychological assessments could be conducted
for the following purposes:
- considering an application for review of a bail
decision;
- deciding on an application for or against the
imposition of an adult sentence;
- making or reviewing a youth sentence;
- considering an application to continue custody
beyond the "custodial portion" of a sentence of custody and supervision;
- setting conditions for release from custody on
conditional supervision;
- making an order suspending or reinstating
conditional supervision;
- authorizing disclosure of information contained in
a youth record; or
- making an intensive rehabilitative custody and
supervision order (this sentence would be available only where a young person was
convicted of certain serious violent offences).
Clause 34(1) would provide that a
youth justice court could order that a young person be assessed by a qualified person,
either on the consent of the young person and the prosecutor, or otherwise, where the
court believed that such an assessment was necessary for one of the purposes listed above
and where:
- the court had reasonable grounds to believe that
the young person might be suffering from a physical or mental illness or disorder, a
psychological disorder, and emotional disturbance, or a learning or mental disability;
- the young person had a history of repeated youth
convictions; or
- the young person was accused of a serious violent
offence.
For the purposes of conducting
such an assessment, clause 34(3) would enable the court to remand the young person in
custody for a period not exceeding 30 days. However, the court could only do this without
the consent of the young person where it was satisfied that custody was necessary to
conduct the assessment, or the young person had to be detained in custody in any event
(clause 34(4)).
The qualified person would be
required to report to the court in writing the results of the assessment (clause 34(1)),
which would form part of the record of the case (clause 34(12)). Unless disclosure of such
a report would be harmful to the young person (see below), the court would have to send a
copy of it to the young person, defence counsel, the prosecutor, and a parent of the young
person who was in attendance at the proceedings or was otherwise taking an active interest
in the case (clause 34(7)). On application to the court, the prosecution or the defence
would be given an opportunity to cross-examine the qualified person on the report (clause
34(8)).
Notwithstanding the foregoing, a
private prosecutor would be denied access to all or part of such a report where, in the
courts opinion, the information was not necessary for the prosecution of the case
and its disclosure might be prejudicial to the young person (clause 34(9)). Moreover, the
youth justice court would be required to withhold from a young person, his or her parents,
or a private prosecutor, all or part of any such report whose disclosure, in the
courts opinion, would seriously impair the treatment or recovery of the young
person, or would likely endanger the life, safety or psychological well-being of another
person (clause 34(10)). The report could be disclosed to those persons where the court was
of the opinion that disclosure was essential in the interests of justice (clause 34(11)).
Furthermore, notwithstanding any other provision of the bill, a qualified person could
disclose information in such a report to a person having the care of a young person in
custody who was thought likely to endanger his or her own life or safety or that of others
(clause 34(13)).
7. Adjudication
Clause 35 of the bill would
simply provide that, where a young person pleaded guilty to an offence and the youth
justice court was satisfied that the facts supported the charge, the court must find the
young person guilty of the offence. Otherwise, the youth justice court would have to
proceed with a trial and then either find the young person guilty or not guilty, or
dismiss the charge. This would effectively re-enact the provisions of sections 19(1) and
(2) of the YOA.
8. Appeals
The provisions of the bill
(clause 36) governing appeals of youth justice court decisions are similar to those
contained in the YOA (see sections 27, 47(6) and 10(4)).
Clause 36(1) would provide that
appeals in respect of offences prosecuted by indictment would be governed by the Criminal
Code provisions for appeals in indictable cases (Part XXI), subject to any
modifications required in the circumstances. Clause 36(5) would similarly apply the
provisions of Part XXVII of the Criminal Code to summary conviction appeals in the
youth system. Where a young person was tried jointly for indictable and summary conviction
offences, an appeal would be governed by the provisions for appeals in indictable cases
(clause 36(6)).
Clauses 36(2) and (3) would
provide for appeals in contempt of court cases. Although contempt proceedings under the
bill would be summary in nature, under clauses 36(2) and (3) an appeal of a conviction or
sentence for contempt imposed by a youth justice court would be dealt with as an appeal in
a case prosecuted by indictment.
Clause 36(4) would provide for
the consolidation of appeal proceedings with respect to a number of matters relating to
sentencing. Unless the appellate court ordered otherwise, certain findings and orders of
the youth justice court that followed a conviction would all have to be part of the same
appeal proceeding: a finding that an offence was a "serious violent offence"
(clause 41(8)); a decision on an application for or against the imposition of an adult
sentence (clause 72(1)); a decision on an application for a publication ban on information
that could identify a young person dealt with under the bill (clause 75(3)); or a decision
on the custodial placement of a young person who had received an adult sentence of
imprisonment (clause 76(1)).
In jurisdictions where the youth
justice court was a superior court, an appeal on a summary conviction matter would lie to
the relevant court of appeal (clause 36(8)). There would be an exception for Nunavut,
where such an appeal would lie first to a judge of the Nunavut Court of Appeal, from whose
decision there could be a further appeal to the full court (clause 36(9)).
Clause 36(10) would provide that
there could be no appeal of a youth justice case to the Supreme Court of Canada without
the leave of that Court. This is consistent with the current YOA section 27(5), except for
the elimination of the requirement that the Supreme Courts leave for the appeal must
be granted within 21 days of the court of appeal decision (or within such extended time as
the Court might, for special reasons, allow). In the absence of this special deadline, the
60-day deadline provided for in the Supreme Court Act (section 58) would apply.
Another effect of this provision,
as with the current section 27(5) of the YOA, would be to preclude appeals as of right
(i.e., without the need to seek leave) to the Supreme Court of Canada in indictable cases.
An adult accused can appeal without leave to the Supreme Court on any question of law on
which there is a dissent in the court of appeal, or on any question of law where the court
of appeal has substituted a conviction for an acquittal (Criminal Code section
691). The effect of section 27(5) of the YOA and of clause 36(10) of the bill is to
foreclose this right of appeal in youth justice cases.(10)
Clause 36(11) would preclude any
appeal from youth sentence review proceedings (see below, with respect to clauses 59 and
93-95).
E. Part 4: Sentencing
1.
Introduction
It is in the area of sentencing
that Bill C-3 proposes the most substantive changes to the current law. First of all, the
bill would add a statement of purpose and principles applicable to youth sentencing in
general, as well as a series of principles to govern the use of custodial youth sentences
in particular. Unlike the general principles expressed in the Declaration of Principle in
clause 3, which would apply to the interpretation and application of the bill in general,
these principles set out in Part 4 would be specifically directed to sentencing. The bill
also proposes to create some new youth sentences, expand the category of cases where an
adult sentence could be imposed, and alter the procedure for gaining access to adult
sentences.
2. Purposes and Principles
a. Introduction
Clauses 37 and 38 of the bill set
out a series of principles that would guide the youth justice courts in the sentencing of
young persons who were subject to a youth sentence under the bill. Clause 37 deals with
principles and factors that would be applicable to the imposition of youth sentences
generally, while clause 38 sets out the conditions for imposing a sentence of custody on a
young person. Clauses 37 and 38 would apply only where the young person was to be given a
youth sentence. In cases where an adult sentence was to be imposed, the Criminal Code
rules and principles for sentencing would apply.
b. Purpose and Principles of Youth Sentencing
Clause 37(1) asserts that the
purpose of imposing a youth sentence is: "to contribute to the protection of society
by holding a young person accountable for an offence through the imposition of just
sanctions that have meaningful consequences for the young person and that promote his or
her rehabilitation and reintegration into society."
Clause 37(2) provides that youth
sentences would have to be determined in accordance with the following principles:
- the sentence must not result in a greater
punishment than would be appropriate for an adult convicted of the same offence committed
in the same circumstances;
- the sentence would have to be similar to the
sentences imposed on other young persons found guilty of the same offence committed in
similar circumstances;
- the sentence would have to be proportionate to the
seriousness of the offence and the young persons degree of responsibility for it;
and
- subject to c), the sentence would have to:
- be the least restrictive sentence that was
consistent with the overall goal of youth sentencing set out in clause 37(1) (above);
- be the sentence most likely to promote the young
persons rehabilitation and reintegration into society; and
- promote a sense of responsibility in the young
person, including his or her acknowledgement of the harm done to the victim and the
community.
Clause 37(3) would require the
youth justice court to take the following factors into account when determining a youth
sentence:
- the degree of participation of the young person in
the offence;
- the harm done to the victims and whether it was
intentional or reasonably foreseeable;
- any reparation made by the young person to the
victim or the community;
- any time spent by the young person in pre-trial
detention as a result of the offence;
- previous findings of guilt against the young
person; and
- any other aggravating and mitigating circumstances
relevant to the purpose and principles set out in this clause.
The purpose and principles of
youth sentencing proposed in clause 37 reflect many of the overall goals of the youth
criminal justice system identified in the bills Declaration of Principle (clause 3).
With the exception of clause 37(2)(a), the foregoing purpose and principles are also
similar to many of those applicable to the sentencing of adults (see sections 718 to 718.2
of the Criminal Code, as well as the relevant jurisprudence). However, consistent
with the philosophy underlying the retention of a separate criminal justice system for
youth, the purpose and principles of youth sentencing proposed in clause 37 of the bill do
not place the same emphasis on denunciation and deterrence of unlawful conduct, which
remain prominent considerations in the sentencing of adults (see section 718(a) and (b) of
the Criminal Code).
The one sentencing principle that
is unique to the youth system, proposed in clause 37(2)(a), is that a youth sentence must
not be greater than that appropriate for an adult convicted of the same offence under
similar circumstances. This would enhance the protection afforded by the current
limitation on youth punishment in section 20(7) of the YOA, which only prevents youth
sentences from exceeding the maximum punishment applicable to an adult for the same
offence. Clause 37(2)(a), however, would require youth justice courts to keep youth
sentences within the upper limit of what similarly situated adults would actually receive.
c. Principles Applicable to Custodial
Youth Sentences
Clause 38 seeks to further
de-emphasize the use of custodial sentences in the Canadian youth criminal justice system.
This aim is motivated by a perception that there is currently an over-reliance on
incarceration in that system. Indeed, government statistics suggest that Canadas
youth incarceration rate is considerably higher than the Canadian rate for adults and the
youth rates in other industrialized countries. Clause 38 would preserve and expand upon
the provisions in section 24 of the YOA which also seek to underscore the principle that
custody should be reserved for only the most serious youth cases.
Clause 38(1) stipulates that the
youth justice court could not sentence a young person to custody unless:
- the young person was guilty of a violent offence;
- the young person had failed to comply with
previous non-custodial sentences;
- the young person was guilty of an indictable
offence for which an adult could be sentenced to imprisonment for more than two years and
had a history of youth court convictions; or
- it would be inconsistent with the purpose and
principles of youth sentencing set out in clause 37 (above) to impose a non-custodial
sentence in light of the circumstances of the offence.
Clause 38(2) would further
preclude the imposition of a custodial sentence except where the court had considered all
reasonable alternatives to custody raised at the sentencing hearing and determined that no
alternative sentence or combination of sentences would accord with the purpose and
principles of sentencing in clause 37. In making this determination, clause 38(3) would
require the court to consider submissions concerning: alternatives to custody that were
available in the jurisdiction; evidence of compliance with previous non-custodial
sentences; and the alternative sentences used in similar cases.
Clauses 38(4) and 38(5) would
foreclose the courts use of certain factors to justify the imposition of custodial
sentences. Clause 38(4) stipulates that the fact that a young person had previously
received a particular non-custodial sentence would not preclude resort to that sentence
for a subsequent offence. In other words, courts should not feel compelled to impose a
more severe sentence when a young person re-offended. Clause 38(5) would preclude the use
of custodial sentences as a substitute for appropriate child protection, mental health, or
other social measures.
Clause 38(6) would require the
court to consider a pre-sentence report on the young person, unless the court was
satisfied that a report was unnecessary and both the defence and prosecution consented to
dispensing with it (clause 38(7)).
To help ensure that youth justice
courts follow the foregoing restrictions and pre-conditions attaching to the imposition of
a custodial sentence, clause 38(9) would require the sentencing court to give reasons why
a non-custodial sentence would be inadequate for achieving the purpose of youth sentencing
in clause 37(1) (above).
Once a youth justice court
decided that a custodial sentence was appropriate and necessary, clause 38(8) would, in
determining the length of the sentence, require the court to be guided by the purpose and
principles in clause 37. The court would be forbidden from taking into consideration the
fact that the young person might be released from custody during the supervision portion
of such a sentence (see below) and that the sentence would be subject to regular and
periodic review by the court (see clause 93 in Part 5 of the bill). In other words, in
determining the length of a custodial sentence, the youth justice court would have to
assume that the young person would serve the whole period in custody.
3. Pre-Sentence Report
Pre-sentence reports are intended
to provide courts with an independent source of background information on an offender that
would be useful in determining a sentence. There is provision for such reports in both the
youth and adult criminal justice systems. In the youth system, however, they are currently
referred to as "pre-disposition reports" in keeping with the vocabulary of the
YOA. Under Bill C-3, since "dispositions" would become "youth
sentences," the "pre-disposition reports" would become "pre-sentence
reports," as in the adult system. Otherwise, clause 39 of the bill would essentially
re-enact the relevant YOA provisions (section 14).
Clause 39(1) would require a
provincial director to cause a pre-sentence report to be prepared and submitted to a youth
justice court whenever the court thought it advisable or was required to consider such a
report (which would be the case where the court was considering a custodial sentence),
before imposing sentence.
To the extent that it was
relevant to the purpose and principles of sentencing set out in clauses 37 and 38 (above),
clause 39(2) would require that, where possible and applicable, a pre-sentence report
include:
- the results of an interview with the young person,
the young persons parents, and, if appropriate, the young persons extended
family;
- the results of an interview with the victim;
- the recommendations from a conference (see clause
19 in Part 2);
- the age, maturity, character, behaviour, and
attitude of the young person, and his or her willingness to make amends;
- any plans suggested by the young person to change
his or her conduct or to improve himself or herself;
- the history of previous findings of guilt for
offences under federal, provincial, or municipal law, and of any resulting community or
other services provided to the young person;(11)
- the response of the young person to previous
sentences, dispositions or services provided;
- the history of alternative measures (YOA) or
extrajudicial sanctions used to deal with the young person and the young persons
response to those measures;(12)
- the availability and appropriateness of community
services and facilities for young persons, and the willingness of the young person to
avail himself or herself of them;
- the relationship between the young person and his
or her parents, and, if appropriate, between the young person and his or her extended
family, including the degree of control and influence that these family members have over
the young person;
- the young persons school attendance and
performance record and employment record;
- any information that might assist the court in
determining whether there was a reasonable alternative to custody under clause 38 (above);
and
- any information that the provincial director
considered relevant, including any recommendation that the provincial director considered
appropriate.
Clause 39(4) would require the
pre-sentence report to form part of the record of the case. Copies of a pre-sentence
report would be given to the young person and his or her counsel, any parent of the young
person in attendance at court or who was otherwise taking an active interest in the case,
and the prosecutor (clause 39(5)). Moreover, on application to the court, the defence or
the prosecution would be entitled to cross-examine the author of the report (clause
39(6)). However, in the case of a private prosecution, all or part of the report could be
kept from the prosecutor where the court was of the opinion that the information might be
prejudicial to the young person and was not necessary for the conduct of the prosecution
(clause 39(7)).
Any court dealing with matters
relating to the young person, and any youth worker assigned to the young persons
case would be entitled to receive copies of a pre-sentence report on request from the
youth justice court that had received it (clause 39(8)(a)). The court could also supply a
copy of the report to any other person who, in the courts opinion, had a valid
interest in the case (clause 39(8)(b)). In addition, a provincial director could make all
or part of a pre-sentence report available to any person to whose custody or supervision
the young person had been committed, or to any other person who was directly assisting in
the care or treatment of the young person (clause 39(9)).
According to clause 39(10), no
statement made by a young person in the course of the preparation of a pre-sentence report
would be admissible in evidence against him or her in any civil or criminal proceedings,
except for those relating to: the imposition of a youth sentence; the review of a youth
sentence; or the decision on an application for or against the imposition of an adult
sentence.
4. Youth Sentences
a. Overview
Unless the youth justice court
ordered that a young person was to be subject to an adult sentence in accordance with
clauses 63(5), 70(2), or 72(1)(b) (see "Adult Sentences," below), the court
would have to impose one, or a combination, of the youth sentences listed below under
clause 41(2). All the current youth "dispositions" available under section 20(1)
of the YOA would be retained under Bill C-3. The bill proposes five new youth sentences,
however, and would provide that the last third of a sentence of custody be spent in the
community under conditions. Currently, the YOA provides for a period of supervision in the
community as a follow-up to a custodial term only in the case of murder.
The five new proposed youth
sentences are: a reprimand; an intensive support and supervision program order; a program
attendance order; a deferred custody and supervision order; and an intensive
rehabilitative custody and supervision order (see clauses 41(2)(a), (l), (m), (o), and
(q), below). However, the availability of a number of these new sentences would be
dependent on the establishment of programs by the provinces.
b. Sentencing Inputs
Where a youth justice court found
a young person guilty of an offence, clause 40 would permit the court to refer the matter
to a conference for recommendations as to the sentence (see clause 19).
Clause 41 would set out the
various youth sentences available and certain rules and conditions associated with them.
Before imposing a youth sentence, the court would have to consider: any conference
recommendations; any pre-sentence report; any representations made by the prosecution or
defence; any representations made by the parents of the young person; and any other
relevant information before the court (clause 41(1)).
c. Possible Youth Sentences
Clause 41(2) would require a
youth justice court that found a young person guilty of an offence to impose one or any
combination of the following sentences that were not inconsistent with each other (where
applicable, the corresponding YOA provision appears in parenthesis):
- a reprimand (new);
- an absolute discharge (YOA s. 20(1)(a));
- a conditional discharge (with supervision by the
provincial director) (YOA s. 20(1)(a.1));(13)
- a fine to a maximum of $1,000 (YOA s. 20(1)(b));(14)
- an order to pay certain types of damages to
another person (YOA s. 20(1)(c) however, the new provision would add references to
applicable Quebec civil law terminology);(15)
- an order for the restitution of property to
another person (YOA s. 20(1)(d));(16)
- an order to compensate any innocent purchaser of
property in respect of which the court had made a restitution order (YOA s. 20(1)(e));(17)
- an order to compensate any person in kind or by
way of personal services, in lieu of monetary damages or compensation under e) or g) (YOA
s. 20(1)(f));(18)
- an order to perform a community service and to
report to, and be supervised by, the provincial director or a person designated by the
court (YOA s. 20(1)(g));(19)
- make any prohibition, seizure, or forfeiture order
that could be imposed under federal legislation (except a prohibition order under section
161 of the Criminal Code(20)) (YOA ss. 20(1)(h)
and 20(11));
- place the young person on probation for up to two
years (YOA s. 20(1)(j));
- subject to the agreement of the provincial
director, order the young person into an intensive support and supervision program as
directed by the provincial director (the content of any such programs would be determined
by the provinces existing programs provide for closer monitoring and more support
than ordinary probation) (new);
- subject to the agreement of the provincial
director, order the young person to attend a facility offering a program approved by the
provincial director, for a maximum of 240 hours over a period of up to six months (new);(21)
- make a custody and supervision order of up to
three years, where the young person was found guilty of an offence punishable by life
imprisonment under the Criminal Code, or up to two years, in any other case
under this sentence, the young person would be ordered to spend two-thirds of the period
in custody, and one-third in the community under conditions (this designated period of
supervised release would be analogous to statutory release for adults under the Corrections
and Conditional Release Act, and would be a change from the current custody
disposition under YOA s. 20(1)(k));
- make a deferred custody and supervision order
(this would be like a suspended or conditional sentence in the adult system) for a period
of up to six months, subject to appropriate conditions(22)
(new);
- continuous custody and supervision for up to seven
or ten years (applicable only to murder, see below) (YOA s. 20(1)(k.1));
- intensive rehabilitative custody and supervision
(applicable only to a "presumptive offence," in certain circumstances, see
below) (new); or
- impose any other reasonable and ancillary
condition on the young person that the court considered advisable and in the best
interests of the young person and the public (YOA s. 20(1)(l)).
d. Youth Sentence for Murder
In addition to any of the other
above sanctions that the court considered appropriate, where a young person subject to a
youth sentence was convicted of murder, a youth justice court would have to impose one of
the following sentences:
- in the case of first degree murder, custody and
supervision for up to ten years, with a continuous custodial period of up to six years,
followed by conditional supervision in the community (clause 41(2)(p)(i)); or
- in the case of second degree murder, custody and
supervision for up to seven years, with a continuous custodial period of up to four years,
followed by conditional supervision in the community (clause 41(2)(p)(ii)).
As an alternative, the court
could, in an appropriate case, make an order of intensive rehabilitative custody
and supervision (see below), subject to the same maximum periods for the custodial and
supervision portions of the sentence (clauses 41(2)(q)(ii) and (iii)).
As with the current section
20(1)(k.1) of the YOA, a young person found guilty of murder and sentenced under clauses
41(2)(p) or (q) of the bill would face the possibility of being incarcerated for five
years or more, thereby triggering the right to a jury trial guaranteed in section 11(f) of
the Canadian Charter of Rights and Freedoms. Therefore, as with sections 19 and
19.1 of the YOA, clauses 66 and 67 of the bill (see below under "Adult
Sentences") provide for an election as to mode of trial in such cases.
Clauses 66 and 67 would, however,
expand the trial options available to young persons in this situation. Currently, where a
young person wants a preliminary inquiry, he or she must elect to be tried by a judge and
jury. Under clauses 66 and 67, a young person in that situation could elect to have a
preliminary inquiry and be tried by a judge alone, thus enjoying the same right of
election as is available under the Criminal Code in most indictable cases.
e. Intensive Rehabilitative
Custody and Supervision
Under clause 41(2)(q), a new
youth sentence an "intensive rehabilitative custody and supervision
order" could be made in respect of any "presumptive offence" under
the bill (i.e., murder, attempted murder, manslaughter, aggravated sexual assault; or any
other offence involving serious violence that would be punishable in the adult system by
imprisonment for more than two years, where the young person had previously been found
guilty of at least two such offences). Pursuant to clause 41(7), this sentence would be
subject to the following prerequisites: the young person would have to suffer from a
mental illness or disorder, a psychological disorder, or an emotional disturbance; a plan
of treatment and intensive supervision would have to have been developed for the young
person, and there would have to be reasonable grounds to believe that the plan might
reduce the risk of the young persons committing another presumptive offence; and the
provincial director would have to consent to the young persons participation in the
program. The order would commit the young person to an initial period of continuous
intensive rehabilitative custody, followed by conditional supervision in the community for
the remaining period of the order. In cases other than murder (see above), such an order
would be for a maximum period of three years in the case of an offence punishable under
the Criminal Code by imprisonment for life, or two years, in any other case (clause
41(2)(q)(i)).
Although it would be up to the
provinces to give content to the sentence by establishing the necessary programs, this
proposed new sentence is intended to provide greater control and treatment for serious
violent offenders with significant psychological, mental, or emotional illnesses or
disturbances.
f. "Serious Violent
Offence" Determination
Pursuant to clause 41(8), a youth
justice court that had found a young person guilty of an offence could, on the application
of the prosecution and after hearing both parties, determine that the offence was a
serious violent offence and endorse the information accordingly. A "serious violent
offence" is defined in clause 2 of the bill as "an offence that causes or
creates a substantial risk of causing serious bodily harm." Upon the third such
determination, a young person who was 14 or older would be subject to an adult sentence,
unless the young person could satisfy the court that a youth sentence would be sufficient
to hold him or her accountable.
g. Total Duration of Youth Sentences
Clause 41(12) would limit the
total duration of a youth sentence in respect of any single offence to two years, except
for an order of prohibition, seizure or forfeiture (clause 41(2)(j)), an order for custody
and supervision, or an order for intensive rehabilitative custody and supervision (clauses
41(2)(n), (p) or (q)). Where the young person was found guilty of more than one offence,
the combined duration of the youth sentences would be limited to three years, except for
first and second degree murder, where the total duration of youth sentences would be
limited to ten and seven years, respectively (clause 41(13)). Equivalent provisions are
found at sections 20(3) and (4) of the YOA.
Consecutive sentences would be
available where a young person was under sentence for an offence when a new sentence
involving custody was imposed, or where a young person was found guilty of more than one
offence in respect of which the court imposed a term of custody (clause 41(15)).
Consistent with section 20(5) of
the YOA, clause 41(16) would provide that a youth sentence imposed on a young person would
continue in force after the young person became an adult.
h. Additional Custody Sentences
Clauses 42 to 45 of the bill
would deal with the effect of an additional youth sentence of custody imposed for an
offence committed prior to the start of a sentence that a young person was already
serving.
In such cases, clause 42 would
provide that, for the purposes of calculating the total length of the young persons
sentence and the respective custodial and community portions (i.e., release under
supervision in the community subject to conditions, or conditional supervision), the two
sentences would effectively be added into a single custodial sentence deemed to commence
at the beginning of the earlier sentence. The new merged sentence would be subject to the
limits set out in clause 41(13) above (i.e., ten years, in the case of first degree
murder; seven years, in the case of second degree murder; and three years, in all other
cases), and the total custodial portion of such a merged sentence would be limited to six
years under clause 45.
Clause 43 would provide for the
effective extension of the custodial portion of the sentence being served in order to take
account of the additional custodial sentence.
Clause 44 would provide for the
termination of community supervision and the return to custody, where the custodial
portion would be effectively extended by the additional custodial sentence. However, even
where the additional custodial sentence did not automatically extend the custodial portion
to be served, the provincial director would have the discretion under clause 44(2) to have
the young person remanded into custody for a review of the case. Pursuant to clause 44(3),
the provincial director would be obliged to do this where the young person had been
released under conditional supervision before the end of the custodial portion of the
earlier sentence (see clauses 93 and 95 in Part 5). These provisions are intended to
ensure that, even where an additional custodial sentence did not affect the duration of
the sentence already being served, there would still be an opportunity for the responsible
officials to revisit the case, since the additional sentence might affect the young
persons risk profile.
i. Continuous vs Intermittent Custody
Consistent with YOA section 24.4,
clause 46 would provide that, while youth custody sentences would be deemed to be
continuous custody, a youth justice court could order a young person to serve the
custodial portion of such a sentence on an intermittent (i.e., weekend) basis, provided
there was a youth custody facility available that could carry out such a sentence.
However, clause 46(2) would amend the law to restrict intermittent custody to cases where
the sentence was for 90 days or less. Moreover, intermittent custody would not be
available in the case of murder or in any case where intensive rehabilitative custody and
supervision was ordered. Clauses 41(2)(p) and (q) above specify that a sentence involving
a period of continuous custody would have to be imposed in such cases.
j. Reasons for Sentence
Clause 47 would require a youth
justice court to provide reasons for the sentence imposed in the record of the case and,
on request, to cause copies of the sentence and reasons to be sent to: the young person;
the young persons counsel; a parent of the young person; the provincial director;
the prosecutor; and, in the case of a custodial sentence, the review board (which would be
responsible for conducting reviews on the level of custody in which a young person was to
be held see clause 86). An equivalent provision is found in YOA section 20(6).
k. Non-Application of Criminal Code
Sentencing Provisions
Consistent with YOA section
20(8), clause 49 would provide that the Criminal Code provisions on sentencing
(Part XXIII) would not apply in a case where the young person was subject to a youth
sentence, except for the following provisions: section 722 (provision for the admission of
victim impact evidence); section 730(2) (continuation in force of appearance notice,
promise to appear, summons, undertaking, or recognizance in certain situations); and
sections 748, 748.1 and 749 (provisions dealing with pardons, remission of sentence, and
the royal prerogative of mercy).
l. Weapons Prohibitions
Clause 50 would provide that, in
addition to the youth sentences listed in clause 41(2) above, young persons found
guilty of certain offences would, like adults, be liable to court-ordered prohibitions on
the possession of weapons, ammunition, explosives, etc. (the offences that would trigger
such an order are set out in sections 109(1)(a) to (d) and 110(1)(a) and (b) of the Criminal
Code). However, the periods specified in clause 50 of the bill for the duration of
such orders would be considerably less than the periods applicable to adults under the Criminal
Code (a maximum, in the case of a discretionary order, or a minimum, in the case of a
mandatory order, of two years under the bill; versus a maximum or minimum, as the case
might be, of ten years under the Code). Clause 51 would provide for the review of such
orders, on application, by the youth justice court. Equivalent provisions are found at
sections 20.1 and 33 of the YOA.
m. Allocation of Funds for Victim
Assistance
Clause 52 would provide for the
direction towards victim assistance of revenue from fines imposed on young persons under
clause 41(2)(d). Clause 52(1) would permit the lieutenant governor in council of a
province to fix a portion of such fines to be used in providing assistance to victims of
offences as he or she might direct. Where a province did not fix the percentage of fines
to be diverted to victim assistance, clause 52(2) would provide that a youth justice court
imposing a fine could order that the young person also pay a victim fine surcharge of up
to 15% of the fine, which would be used to provide such assistance to victims as the
lieutenant governor in council of the province might direct.
Pursuant to clause 53(1), before
ordering a victim fine surcharge, the court would have to consider the young persons
ability to pay. The young person could pay off all or part of a surcharge by performing
work in a program established by the province for that purpose (clause 53(2)).
n. Orders with Conditions for Conduct
i. Terms and Conditions
Clause 54 sets out terms and
conditions applicable to probation orders (clause 41(2)(k)) and orders directing a young
person into a program of intensive support and supervision (clause 41(2)(l)). Similar
provisions are found in section 23 of the YOA. Such orders would have to include the
following conditions, to which the young person would be subject: that the young person
would have to keep the peace, be of good behaviour, and appear before the youth justice
court when required. The youth justice court could also prescribe any of the following
additional conditions requiring the young person to:
- report to and be supervised by the provincial
director or a designated person;
- notify the court clerk, provincial director, or
youth worker of any change of address or place of employment, education, or training;
- remain within the territorial jurisdiction of the
court or courts named;
- make reasonable efforts to obtain and maintain
suitable employment;
- attend school or any place of learning, training,
or recreation where a suitable program was available;
- reside with a parent or other appropriate adult
who was willing to provide for the care and maintenance of the young person;
- reside at a place that the provincial director
might specify;
- not to own, possess, or have control of any
weapon, ammunition, prohibited ammunition, prohibited device, or explosive substance,
except as authorized; and
- comply with any other conditions that the court
considered appropriate.
The foregoing conditions could
also be included in a deferred custody and supervision order (i.e., suspended sentence
with conditions) pursuant to clause 41(2)(o).
ii. Variation of Order
Pursuant to clause 55, the young
person or the provincial director could apply to the youth justice court that made a
probation order (clause 41(2)(k)) or an order for intensive support and supervision
(clause 41(2)(l)) in order to: make any changes to the optional conditions of the orders
where this was desirable because of a change in the young persons circumstances;
relieve the young person wholly or partially from complying with any optional condition;
cancel the order and substitute another appropriate sentence (it would have to be a
sentence under clause 41(2)(d) to (m)); or cancel the order absolutely.
iii. Breach of Order
Clause 56 would deal with the
breaching of orders of probation (clause 41(2)(k)), intensive support and supervision
(clause 41(2)(l)), or deferred custody and supervision (clause 41(2)(o)). On the
application of the provincial director, where the youth justice court was satisfied that
the young person had violated a condition of such an order without reasonable excuse, it
could have the young person brought before it for a hearing. After such a hearing, a range
of options would be open to the court, depending on the young persons prior record
of compliance with the order and the nature of the breach in question. The court might
take no action if the breach was minor or could make any changes to the optional
conditions of the order where this was desirable due to a change of circumstances. In
addition, the court could order the young person to attend a facility for an approved
program under clause 41(2)(m). Where the conditions of a deferred custody and supervision
order had been breached, the court could effectively convert the order into a custody and
supervision order under clause 41(2)(n), resulting in the young persons committal to
custody. Clause 56 is similar to section 26.6 of the YOA.
o. Transfer of Sentences
Clauses 57 and 58 provide for the
transfer of youth sentences to other territorial divisions outside the jurisdiction of the
sentencing youth justice courts; they would effectively reproduce the provisions of
sections 25 and 25.1 of the YOA.
p. Review of Non-Custodial Sentences
Clause 59 would provide for the
review of non-custodial youth sentences (i.e., a youth sentence under clause 41(2), other
than under clause 41(2)(n), (p), or (q)) by the youth justice court. Clause 59 would
effectively reproduce section 32 of the YOA. The sentence review mechanism would enable
the courts to revisit a sentence imposed on a young person and to consider whether it was
still appropriate in the circumstances, or whether it should be varied or even terminated.
Review of a non-custodial youth
sentence would be available six months after it was imposed or earlier with leave
of a youth justice court judge on the application of the young person, the young
persons parent, the attorney generals office, or the provincial director
(clause 59(1)). A sentence review could not take place until the completion of any appeal
proceedings in the case (clause 59(5)). To assist in its conduct of a sentence review, the
youth justice court could require the provincial director to have a progress report
prepared on the performance of the young person since the sentence had gone into effect
(clause 59(3)). Such a report could include any information on the personal history,
family history, and present environment of the young person that the author of the report
considered advisable (clause 59(4)). The provisions governing the distribution and
disclosure of pre-sentence reports (see clauses 39(4) to (10)) would apply to
progress reports (clause 59(4)).
Pursuant to clause 59(2), the
grounds for reviewing a non-custodial youth sentence would be:
- that there had been a material change in the
circumstances that led to the imposition of the sentence;
- that the young person was either unable to comply
with, or was experiencing serious difficulty in complying with the terms of the sentence;
- that the terms of the sentence were adversely
affecting the young persons opportunities to obtain certain services, education, or
employment; or
- any other ground that the court considered
appropriate.
After conducting the review, and
hearing from the parties (i.e., the young person, a parent of the young person, the
attorney general, and the provincial director), the youth justice court could either:
- confirm the original youth sentence;
- terminate the youth sentence; or
- vary the original youth sentence or impose a new
youth sentence (other than a custodial sentence), provided that the modified sentence was
not more onerous than the remainder of the original sentence (unless the young person
consented).
5. Adult Sentences
a. Overview
Curretly, under the YOA a young
person can be subjected to an adult sentence only if the proceedings are transferred to
the adult criminal justice system prior to judgment. Transfer of cases to the adult system
is dealt with in section 16 of the YOA. The YOA provides for two forms of transfer: the
general transfer and the presumptive transfer.
The general transfer mechanism is
available only where the young person is at least 14 years of age and is charged with an
indictable offence (other than an indictable offence that can only be tried in provincial
court). Either the prosecution or the defence can apply to the youth court to have a case
transferred to the adult system. Before ordering such a transfer, the court must be
satisfied that the goals of public protection and rehabilitation of the young person
cannot be appropriately reconciled in the youth system. The party applying for the
transfer usually the Crown prosecutor has the burden of proof.
In 1995, the YOA was amended to
provide for the presumptive transfer of certain cases to the adult system. These are cases
where the young person is at least 16 years of age and is charged with murder, attempted
murder, manslaughter, or aggravated sexual assault; the matter will proceed in the adult
system, unless either the defence or the prosecution can, on an application, persuade the
court that the goals of public protection and rehabilitation of the young person can be
appropriately reconciled in the youth system. The party applying to prevent the transfer
usually the defence has the burden of proof.
Bill C-3 proposes a substantial
change from the YOA in this area. The bill would abolish the transfer mechanism altogether
and would instead provide for the imposition of adult sentences within the youth criminal
justice system. Similar to the general transfer provision in the YOA, the prosecution
would be able to apply for an order that a young person was subject to an adult sentence
if convicted of an indictable offence punishable (in the case of an adult) by imprisonment
for more than two years. The current presumptive transfer mechanism would be converted
into a category of offences, called "presumptive offences," upon conviction for
which the court would have to impose an adult sentence, unless the young person had
successfully applied for an order that a youth sentence should be imposed. At the same
time, access to adult sentences would be expanded under the bill. In addition to cases of
murder, attempted murder, manslaughter, or aggravated sexual assault, the category of
presumptive offences under the bill would be broadened to include young persons found
guilty for a third time of any serious violent offence. Moreover, the age at which a young
person could be presumed to be liable to an adult sentence would be lowered from 16 to 14
years.
In another change from the YOA,
the determination of whether or not a young person would be liable to an adult sentence
would be moved to the end of the trial i.e., after a finding of guilty, but prior
to the sentencing hearing. However, any young person facing an adult sentence would be
entitled, in non-presumptive cases, to pre-trial notice that the Crown intended to seek an
adult sentence, and, in all such cases, to elect to have a preliminary inquiry and a jury
trial. The move to a post-adjudicative procedure is expected to be more efficient than the
current pre-trial transfer proceedings. Currently, much of the evidence adduced at a
transfer hearing must be adduced again at the trial or at the sentencing hearing.
Moreover, while a transfer decision is appealed separately, before the trial of the case
even begins, an order for or against the imposition of an adult sentence would be
appealable only at the end of the trial, as part of the sentence. A post-adjudicative
determination is also more consistent with the presumption of innocence.
In proposing to replace the
pre-trial transfer procedure with a post-trial determination, the bill is consistent with
the recommendations of both the House of Commons Standing Committee on Justice and Legal
Affairs in its 1997 report and the Federal-Provincial-Territorial Task Force on the Youth
Justice System.(23)
b. Application by Young Person against
Adult Sentence
Clause 62 would provide that a
young person charged with, or found guilty of, a presumptive offence could, at any time
before the commencement of the sentencing hearing, apply to the court for an order that he
or she was not liable to an adult sentence and that a youth sentence would have to be
imposed. Where no such application was made in such a case, clause 70 would require the
youth justice court to inquire whether the young person wished to make such an application
before proceeding to sentencing. If the Crown prosecutor gave notice that the young
persons application was not opposed, the court would have to make the order.
c. Application / Notice by Attorney
General for Adult Sentence
Clause 63 would enable a Crown
prosecutor to apply to the court for an order that a young person was liable to an adult
sentence in respect of an indictable offence punishable (as against an adult) by more than
two years imprisonment and committed after the young person had attained the age of
14. The application would have to be made after the young person was found guilty, and
after any judicial determination under clause 41(8) (above) that the offence was a serious
violent offence, but before the commencement of the sentencing hearing. Where the young
person gave notice to the court that he or she did not oppose the application for an adult
sentence, the court would be required to order that an adult sentence be imposed.
However, where the Crown intended
to make such an application or intended to establish that the offence was a presumptive
offence, the Crown would have to give notice of that intention to the young person and the
youth justice court before the young person entered a plea to the charge, or, with the
courts leave, before the commencement of the trial. The Crown would also be
required, before a plea was entered, to give an additional notice to the young person that
the Crown intended to establish, after a finding of guilty, that the offence was a third
serious violent offence and, therefore, a presumptive offence.
With respect to the named
presumptive offences of murder, attempted murder, manslaughter, and aggravated sexual
assault, no notice would be required. Nor would it be required with respect to any
included offence punishable (as against an adult) by more than two years
imprisonment.
Clause 64 would enable the Crown
to decline to seek an adult sentence in respect of a presumptive offence. Where the Crown
gave notice to this effect, the youth justice court would have to order that the young
person, if found guilty, would not be liable to an adult sentence. The court would also
have to order a ban on publication of information that would identify the young person as
having been dealt with under the bill.
d. Election as to Mode of Trial
Where a young person faced a
possible adult sentence, or wherever a young person was charged with murder (see
discussion on "Youth Sentence for Murder," above), clause 67 would provide for
an election as to mode of trial: no preliminary inquiry and a trial by a youth justice
court judge; a preliminary inquiry and a trial by a judge alone; or a preliminary inquiry
and a trial by a judge and jury. Such proceedings would generally be governed by the
relevant provisions of the Criminal Code (i.e., Parts XVIII, XIX, and XX), except
where inconsistent with the bill.
Notwithstanding this right of
election, clause 67 of the bill would include provisions similar to those in the Criminal
Code that allow an accuseds election of the non-jury options to be overridden in
certain circumstances. Clause 67(3) of the bill would effectively permit the court to
require a trial by judge and jury with a preliminary inquiry where there were multiple
accused who had elected different modes of trial. This provision is essentially the same
as section 567 of the Criminal Code. Clause 67(4), on the other hand, would permit
the Crown prosecutor to override the young persons election and require a jury trial
for any reason. This provision is based on section 568 of the Criminal Code.
e. Determination re Liability to
Adult Sentence
Before making a determination
that a young person was liable to an adult sentence in respect of an offence for which he
or she had been found guilty, the court would have to hold a hearing similar to a transfer
hearing under section 16 of the YOA.
Clause 71 would require a
hearing, unless the application for or against the imposition of an adult sentence, as the
case might be, was unopposed. Like section 16(1.1) of the YOA, both the prosecution, the
defence, and the accuseds parents would have to be given an opportunity to be heard.
The test to be applied in
determining an application in respect of adult sentences under clause 72 would be whether
or not a youth sentence would be adequate to hold the young person accountable for the
offending behaviour, in light of the following factors: the seriousness and circumstances
of the offence; the young persons degree of responsibility, age, maturity,
character, background, and previous record; and any other relevant factors. While the
factors to be taken into account would be similar to those applicable to a transfer
application under section 16 of the YOA, the test itself would be different. Section
16(1.1) of the YOA refers to the capacity of the youth system to reconcile the twin
objectives of public protection and rehabilitation, but makes it clear that public
protection is the paramount concern. The test in clause 72, described above, would not
contain any explicit reference to public protection or rehabilitation; however, the impact
of the proposed test on outcomes is not immediately apparent.
As with a transfer application,
the court would have to consider a pre-sentence report in making a determination under
clause 72. Also, the court would, of course, have to give reasons for its decision. Unlike
a YOA transfer application decision, however, which must be appealed separately, a
decision under clause 72 could be appealed only as part of the ultimate sentence, unless
the appeal court ordered otherwise (see also clause 36(4)).
Clause 74 would provide for the
applicability of the Criminal Code provisions dealing with sentencing (Part XXIII)
and dangerous offenders (Part XXIV) to young persons subject to an adult sentence. Where
an adult sentence was upheld at the conclusion of any appeal proceedings, or once the time
for taking an appeal had expired, clause 74 would convert a "finding of guilt"
against a young person into a "conviction."
Where a young person was found
guilty of a presumptive offence, but the court decided against imposing an adult sentence,
clause 75 would nonetheless in some cases permit the publication of information
identifying the young person. This would represent a change from the YOA (see section 38).
Publication of such information would be allowed, unless, on an application by the defence
or the prosecution, the court was persuaded that the goals of rehabilitation served by
suppression of the information outweighed the public interest in publication.
f. Young Person Sentenced to Imprisonment
When an adult sentence of
imprisonment was given, clause 76 of the bill would, like YOA section 16.2, leave the
court a certain amount of discretion as to the type of correctional facility in which the
sentence would have to be served. Clause 76(1) would require the sentencing court to order
that the young person serve all or any portion of the sentence in a youth custody facility
separate and apart from any adult; a provincial correctional facility for adults; or, if
the sentence was for two years or more, a federal penitentiary. Before making its
decision, the court would have to have a report prepared and would have to give the
following parties and stakeholders an opportunity to be heard: the young person, a parent
of the young person, the Crown prosecutor, the provincial director, and representatives of
the provincial and federal correctional systems (clauses 76(1) and (3)).
Clause 76 would, however, narrow
the discretion of the sentencing court on the issue of placement. Unlike YOA section 16.2,
clause 76(2) would presume that: young persons under 18 at the time of sentencing should
be placed in a youth custody facility; and those 18 or over at that time should be placed
in the applicable type of adult facility (i.e., a provincial institution or federal
penitentiary, depending on the length of the sentence). These presumptions could be
rebutted where the court was satisfied that the presumptive placement would not be in the
best interests of the young person or would jeopardize the safety of others.
Once the deadline for appeals had
expired, any of the parties or stakeholders listed above could apply to the youth justice
court for a review of the placement decision (clauses 76(5) and (6)). After hearing the
other parties and stakeholders, the court could vary its order where it was satisfied that
there had been a material change in the circumstances that had resulted in the original
placement order (clause 76(5)).
Where a "young person"
aged 20 or older, a court making or reviewing a placement order would have to send the
person to the appropriate adult facility unless it was satisfied that being in a youth
facility would be in the best interests of the young person and would not
jeopardize the safety of others (clause 76(8)).
Clauses 77 and 78 would ensure
that the rules governing conditional release (Part II of the Corrections and
Conditional Release Act), or earned remission of sentence (section 6 of the Prisons
and Reformatories Act), as the case might be, applied to any young person serving an
adult sentence of imprisonment, notwithstanding the fact that the young person had been
placed in a youth facility for all or a portion of the sentence.
Despite the foregoing, clauses 79
and 80 would provide that a person given an adult sentence of imprisonment under the bill:
if subsequently sentenced to imprisonment under another federal Act (e.g., the Criminal
Code), would have to be transferred to an adult facility; and, if already serving a
sentence of imprisonment under another federal Act at the time, would have to remain in an
adult facility.
6. Effect of Termination of Youth Sentences
Clause 81 of the bill would
relieve a young person who had received a youth sentence from certain consequences of
being found guilty of a criminal offence. Like section 36(1) of the YOA, clause 81(1)
would provide that, where a young person found guilty of an offence received an absolute
discharge, or where any other youth sentence imposed in respect of the offence had been
completed or terminated, the young person would be deemed not to have been found guilty of
the offence. Unlike the corresponding YOA provision, however, the benefit of clause 81(1)
would extend to persons who were still subject to a weapons prohibition order under clause
50 above, or section 20.1 of the YOA. Clause 81(2) would further provide that the
completion or termination of a youth sentence would remove any disqualification to which
the young person might be subject under federal legislation by reason of having been found
guilty of the offence. Moreover, clause 81(3) would prohibit the use of any job
application form in the federal public sector or in any federally regulated business that
required disclosure of a finding of guilt under the bill in respect of an offence for
which the youth sentence had been completed or terminated. Clauses 81(2) and (3) offer
similar benefits to those available through a pardon under the Criminal Records Act
(see sections 5(b) and 8).
A number of exceptions and
qualifications would apply to the general provision in clause 81(1) whereby a young person
who had completed his or her youth sentence would be deemed not to have been found guilty
of the offence. First of all, clause 81(1) would be subject to section 12 of the Canada
Evidence Act. In other words, a young person who was deemed not to have been found
guilty of an offence under clause 81(1) and who subsequently appeared as a witness in a
proceeding could still be questioned on that finding of guilt as a matter of credibility.
The previous finding of guilt would also be available for use in subsequent proceedings
respecting the young person. It would be available as a basis for an argument of double
jeopardy (e.g., a plea of autrefois convict, or previously convicted) in response
to any further charge relating to the offence (clause 81(1)(a)). A youth justice court
could take such a finding of guilt into account in considering an application for or
against the imposition of an adult sentence (clause 81(1)(b)). A court could also make use
of the finding of guilt in considering an application for judicial interim release or in
determining the appropriate sentence to impose for an offence (clause 81(1)(c)). Also, the
National Parole Board or any provincial parole board could use such a finding of guilt in
considering an application for conditional release or a pardon (clause 81(1)(d)).
According to clause 81(4), a
finding of guilt under the bill would not constitute a previous conviction for the
purposes of any federal offence for which a greater punishment was prescribed by reason of
a previous conviction, except: for the purposes of determining that an offence was a
presumptive offence (an offence for which it is presumed that an adult sentence should be
imposed see part (b) of the definition of "presumptive offence" in clause
2(1) of the bill) or for determining the adult sentence to be imposed on a young
person. These exceptions would constitute a change from the corresponding YOA provision
(s. 36(5)).
F. Part 5: Custody and Supervision
1. Purpose and
Principles of Youth Custody and Supervision
a. General Purpose and Principles
Clause 82(1) of the bill would
declare that the purpose of the youth custody and supervision system is to contribute to
the protection of society by carrying out youth sentences involving custody and
supervision in a safe, fair, and humane manner; and assisting young persons in their
rehabilitation and reintegration into the community as law-abiding citizens, through the
provision of effective programs both in custody and during supervision in the community.
Clause 82(2) sets out the following principles to be used in achieving this purpose:
- the use of the least restrictive measures,
consistent with the protection of the public, personnel working with the young person, and
the young person himself or herself;
- acknowledgement that, except as necessarily
curtailed as a consequence of a sentence under the bill or any Act of Parliament, young
persons sentenced to custody would retain the rights of other young persons;
- the involvement of the families of young persons
and members of the public should be facilitated;
- custody and supervision decisions should be made
in a fair and forthright manner, and the young person should have access to an effective
review procedure; and
- the placements of young persons when treated as
adults should not disadvantage them with respect to release conditions or eligibility.
The foregoing principles would,
of course, be in addition to any relevant principles contained in the bills
Declaration of Principle in clause 3.
b. Separation of Youth from Adult
Offenders
Clause 83 would require that
young persons committed to custody be held separate and apart from any adult, subject to
certain specified exceptions. These exceptions would recognize that young persons subject
to custody should not always be held separate and apart from any adult because:
- in the case of youth who are to be detained prior
to sentencing, it might be unsafe (for themselves or others) to detain them in a youth
facility, or such a facility might be too far away from the young persons home and
family (see clause 30(3));
- some "young persons" under the bill
could, in fact, be adults at the time of sentencing, or could become adults while in youth
custody (see clauses 76, 88, 91 and 92);
- certain young persons, even though they were still
under 18, might merit an adult sentence of imprisonment and, with regard to the best
interests of such young persons and the safety of others, it would not be appropriate to
place them or keep them in a youth facility (see clauses 76, 91(4) and 91(5)); and, at the
same time,
- with regard to the best interests of the offender
or the safety of others, it is not always necessary or appropriate that every person
subject to a custodial sentence under the future YCJA who is or who becomes an adult
should necessarily be sent to an adult facility (e.g., the person could be a low-risk
inmate with only a short sentence to be served) (see clause 76).
The bill would enhance the
separation of youth and adult offenders, however, by narrowing the discretion of the youth
justice court in the placement of persons age 18 or over who received a custodial sentence
under the bill. There would be a new presumption that any person 18 or older who received
an adult sentence of imprisonment under the bill would go to an adult facility
(clause 76(2)(b)). There would be an even stronger presumption to this effect where this
person was 20 or older (clause 76(8)). Moreover, a person who was 20 or older when he or
she received a youth sentence of custody would have to be placed in an adult
facility, without exception (clause 88).
The increased emphasis on the
principle of separating adult and young offenders is aimed at enhancing compliance with
article 37(c) of the UN Convention on the Rights of the Child, which requires
states to ensure that every child deprived of his or her liberty according to law is
separated from adults, unless to do otherwise is considered to be in the childs best
interest. While Canada is a party to this Convention, it has reserved the right not to
detain children separately from adults "where this is not appropriate or
feasible."
2. Level of Custody
Once a young person had been
committed to custody, it would be up to the provincial director to determine the level of
custody in which he or she would be held in accordance with clause 84. Clause 84 would
require provinces to offer at least two levels of custody, distinguished by the degree of
restraint. In determining or redetermining the appropriate level of custody, the
provincial director would have to take the following factors into account:
- the need to impose the least restrictive level of
custody, having regard to:
- the seriousness of the offence and the
circumstances in which it was committed;
- the needs and circumstances of the young person,
including proximity to family, school, employment, and support services;
- the safety of other young persons in custody; and
- the interests of society;
- the need for the level of custody to allow for the
best possible match of programs to the young persons needs and behaviour, having
regard to the findings of any assessment of the young person; and
- the likelihood of escape.
Clause 85 would require the
provincial director to ensure that due process was observed in making a determination or
redetermination under clause 84. Specifically, the young person would have to be provided
with any relevant information to which the provincial director had access in making the
determination; given the opportunity to be heard; and informed of the right to a review
under clause 86. Clause 84(7) would require the provincial director to have written notice
of a determination or redetermination of the level of custody, including reasons, sent to
the young person and his or her parent.
Under clause 86, the provincial
director would be required to ensure that procedures were in place for the review of any
determination or redetermination under clause 84 before an independent board. The above
factors and due process requirements applicable to a determination or redetermination by
the provincial director would apply to a review by the review board, whose decision would
be final.
Where a province preferred to
have the level of custody determined judicially rather than administratively, clause 87
would permit the provincial government to confer on the youth justice court the authority
to make the clause 84 determination. In such a case, various provisions of the current YOA
would apply, with any necessary modifications.
While the criteria for
determining the level of custody would remain the same as under the YOA (see section
24.1(4)), the bill would, contrary to the YOA, presume an administrative procedure for the
decision. Currently, the YOA provides that the youth court is to make this determination,
unless the province designates that the provincial director is to do so (see section
21.4). Another change from the YOA would be that the provinces would have more freedom in
designating the types of youth facilities to which young persons could be committed.
Currently, section 24.1 of the YOA stipulates that youth custody facilities are either
"open custody" meaning a community residential centre, group home, child
care institution, forest or wilderness camp, or any like facility or "secure
custody," meaning a place or facility of secure containment or restraint. Bill C-3,
in clause 84, would require only that provinces offer more than one level of restraint.
There would also be some changes
in the procedure itself. In clause 85, the bill would add specific rights of due process
to be observed by the provincial director in determining the level of custody. Under
clause 86, however, a parent of the young person would no longer have an independent right
to apply for a review of a level of custody determination (see YOA section 28.1(1)), and a
decision by a review board would no longer be subject to a further review by the youth
court (see YOA section 31).
3. Persons Age 20 or over at Time of Sentencing
When a person was aged 20 or
older at the time a custodial youth sentence was imposed, clause 88 would require that he
or she be committed, at least initially, to a provincial correctional facility for adults.(24) Once such a person had served some time in a
provincial adult facility, the provincial director could apply to the youth justice court
for an authorization to direct that the person serve the remainder of the youth sentence
in a federal penitentiary, provided that there were two years or more remaining in the
sentence. The young person, the provincial director, and representatives of the provincial
and federal correctional systems, would all have to be given an opportunity to be heard on
such an application, and the court would have to be satisfied that transfer to a
penitentiary would be in the best interests of either the person or in the public
interest.
A person serving a youth sentence
in an adult facility would be subject to the legislation governing other prisoners in
those facilities (in the case of a provincial correctional facility, the Prisons and
Reformatories Act, and, the case of a federal penitentiary, the Corrections and
Conditional Release Act), except to the extent that these conflicted with the
provisions of Part 6 of the bill (access to youth records, disclosure of information in
youth records, etc.). Corresponding amendments to those Acts are proposed in clauses 170,
172, 195 and 196 of the bill.
4. Youth Workers
Clause 89 deals with youth
workers and their role in assisting in the young persons reintegration into the
community. Clause 89(1) would require the provincial director to designate a youth worker
to work with the young person as soon as he or she was sentenced to custody. During the
custodial portion of the sentence, the youth worker would prepare and implement a plan
setting out the most effective programs for the young persons reintegration into the
community. When the young person was serving part of the sentence in the community, clause
89(2) (similar to YOA section 37(a.1)) would require the youth worker to supervise the
young person, continue to provide support, and help the young person to respect the
conditions of his or her release and to implement the reintegration plan.
5. Reintegration Leave
Clause 90 would provide for the
provincial director to grant "reintegration leave" to any young person committed
to a youth custody facility in the province in respect of a youth sentence or an adult
sentence. Section 35 of the YOA makes similar provision for "temporary release from
custody." Reintegration leave would be available on any terms and conditions that the
provincial director considered desirable:
- for a period of up to 30 days (renewable on
reassessment of the case), with or without escort, for medical, compassionate, or
humanitarian reasons, or for the purpose of rehabilitating the young person or
reintegrating him or her into the community; or
- on the days and during the hours specified by the
provincial director, in order that the young person might:
- attend any educational or training institution;
- obtain or continue employment, or perform domestic
or other family duties;
- participate in a specified program that, in the
provincial directors opinion, would enhance the young persons employment,
educational, or training potential; or
- attend an out-patient treatment program or other
program that addressed the young persons needs.
The provincial director could, at
any time, revoke any such leave. Where this occurred, or where the young person failed to
comply with any term or condition of the leave, the young person could be arrested without
warrant and returned to custody.
6. Transfer / Placement into Adult Facility
Clauses 91 and 92 deal with the
transfer and placement into adult facilities of certain young persons subject to custodial
youth sentences. Clause 76 of the bill addresses the placement of young persons who
received adult sentences of imprisonment under the bill. Clause 88 deals with the
placement of young persons who had attained the age of 20 when they were given a custodial
youth sentence. Clauses 91 and 92 deal with situations where young persons who were
subject to custodial youth sentences were to be transferred to, or placed in, adult
facilities because they reached a certain age while in a youth facility, or because they
were also subject to a non-youth sentence of imprisonment (i.e., an adult sentence under
the bill, or a sentence under other legislation).
Under clause 91(1), a young
person who was subject to a custodial youth sentence could be sent to an adult facility by
the youth justice court, on the application of the provincial director made any time after
the young person had attained the age of 18. The court would first have to give the young
person, the provincial director, and representatives of the provincial correctional system
an opportunity to be heard, and the court would have to be satisfied that the transfer was
in the best interests of the young person or in the public interest. The transfer would be
to a provincial facility for adults; however, if two years or more remained in the
sentence, the provincial director could, under clause 91(2), make a further application to
the court for the young persons transfer to a federal penitentiary. The provincial
director would have to wait until the young person had served some time in the provincial
adult facility, and the court would have to allow representatives of the federal
correctional service to be heard, in addition to the parties listed above in respect of
the initial transfer from youth custody.
Clause 91(4) would provide that a
young person would have to serve a custodial youth sentence in an adult facility where he
or she was also subject to another sentence that had to be served in an adult facility
(i.e., an adult sentence of imprisonment under the bill in respect of which the youth
justice court made an adult placement order under clause 76; or a sentence of imprisonment
under another Act).
Clause 91(5) would give the
provincial director the discretion to order the transfer, to an adult facility of a young
person sentenced to a custodial youth sentence where he or she was already serving an
adult sentence of imprisonment in a youth facility under clause 76.
Where a young person turned 20
while serving a custodial youth sentence in a youth facility, clause 92(1) would require
his or her transfer to a provincial adult correctional facility, unless the provincial
director ordered otherwise. Where a young person was so transferred, clause 92(2) would
enable the provincial director to apply, on the same basis and through the same procedure
as clause 91 above, for the young persons further transfer to a federal penitentiary
where two years or more remained in the sentence.
Pursuant to clauses 91(3) and
92(3), young persons transferred to an adult facility under clauses 91(1), 91(2), 92(1) or
92(2) above would be subject to the legislation governing other prisoners in those
facilities (in the case of a provincial correctional facility, the Prisons and
Reformatories Act, and, the case of a federal penitentiary, the Corrections and
Conditional Release Act), except to the extent that it conflicted with the provisions
of Part 6 of the bill (access to youth records, disclosure of information in youth
records, etc.). Young persons sent to an adult facility under clause 91(4) and (5) would
already be subject to the Prisons and Reformatories Act or the Corrections and
Conditional Release Act, as the case might be, as a result of clause 77(2) and the
consequential amendments to those Acts in clauses 170, 172, 195 and 196.
7. Review of Custodial Youth Sentences and Early
Release
a. Introduction
Notwithstanding the imposition of
a youth sentence involving a specified period of custody under clause 41(2)(n), (p), or
(q), a custodial youth sentence served in a youth facility would be subject to review
under clauses 93 and 95. Like sections 28 and 29 of the YOA, clauses 93 and 95 would
provide for the review of such sentences by the youth justice court, after which, the
court could order the young persons release under conditional supervision where the
court decided that his or her continued detention was no longer necessary.
Unlike persons serving a sentence
in an adult correctional facility, or young persons given an adult sentence of
imprisonment under the bill, young persons serving a youth sentence in a youth facility
are not eligible for parole or remission of sentence. Unless these young persons were
granted early release through a review under clauses 93 or 95 of the future YCJA (or,
currently, sections 28 and 29 of the YOA), they would have to remain in custody until: the
end of the two-thirds custodial portion of the sentence, in the case of an order under
clause 41(2)(n) or (q)(i); or the end of the specified term of custody, in the case of an
order under clause 41(2)(p), (q)(ii) or (iii) (murder).
Sentence reviews under clauses 93
and 95 would be conducted by the youth justice court. The basis for a clause 93 review
would be a change in circumstances justifying a reappraisal of the sentence. A review
under clause 95 would be triggered by a recommendation from the provincial director.
b. Review of Custodial Youth Sentences
Clause 93(1) and (2) would
provide for the annual review of custodial youth sentences that exceeded one year. Clause
93(3) would provide for the optional review of youth custody sentences at earlier
intervals: in the case of a youth sentence not exceeding one year, it would be after
either 30 days from the date of sentencing or one-third of the youth sentence, whichever
was greater; where the youth sentence was for more than a year, it would be after six
months from the date of the last sentence imposed in respect of the offence. Review of a
custodial youth sentence by the youth justice court at these intervals would be dependent
on an application by the young person, the young persons parent, the attorney
general, or the provincial director, citing any of the grounds for review (see below).
Moreover, clause 93(4) would provide that the young person could be brought before the
youth justice court for a review at any other time, with leave of a youth justice court
judge.
The youth justice court would
review a custodial youth sentence when it was satisfied that this was justified on any of
the following grounds (clauses 93(5) and (6)):
- that the young person had made sufficient progress
to justify a change in the youth sentence;
- that the circumstances that led to the sentence
had changed materially;
- that new services or programs were available that
had not been available at the time of sentencing;
- that the opportunities for rehabilitation were now
greater in the community; or
- on any other ground that the court considered
appropriate.
To assist it in conducting the
review, the court would require the provincial director to have a progress report prepared
assessing the performance of the young person since the sentence began (clause 93(9)). The
court would also have to give the young person, a parent of the young person, the attorney
general, and the provincial director, an opportunity to be heard (clause 93(19)).
Having conducted a sentence
review, clause 93(19) would provide that the youth justice court could, having regard to
the needs of the young person and the interests of society:
- confirm the sentence;
- release the young person under conditional
supervision (see below); or
- if the provincial director recommended it, convert
a sentence of intensive rehabilitative custody and supervision under clause 41(2)(q) to a
sentence of custody and supervision under clause 41(2)(n) or custody and conditional
supervision under clause 41(2)(p), as the case might be.
The conditions applicable to
early release on conditional supervision would be the same as those applicable to
conditional supervision under clause 104 at the end of the custodial portion of a youth
sentence of custody and conditional supervision (for murder) or of intensive
rehabilitative custody and conditional supervision (for a presumptive offence, where there
is a psychological or emotional disorder) (see below).
A review under clause 95 would be
similar to one under clause 93, except that it could only be triggered through a
recommendation from the provincial director and would not be restricted to any timeframe
or require the leave of the court.
There could be no review of a
sentence under either clause 93 or clause 95 if the sentence was under appeal (clauses
93(7) and 95(4)).
c. Review of Other Orders
Under clause 94, certain other
decisions could be reviewed as sentences under clause 93: the imposition of additional
conditions of supervision or conditional supervision (see below, clauses 96(2) and
104(1)); a decision by the youth justice court to detain the young person beyond the
custodial portion of the sentence (see below, clauses 97(3) and 103(1)); and the
cancellation of a young persons supervision or conditional supervision in the
community as a result of a breach of conditions (see below, clauses 102(2)(b) and
108(2)(b)).
8. Release on Completion of the Custodial Portion
a. Conditions for Supervision
In a youth sentence of custody
and supervision under clause 41(2)(n), the last third of the sentence would be served in
the community under supervision with a series of conditions automatically applied during
that period (clause 96(1)). These conditions would be the same as those in section 26.2(2)
of the YOA. The young person would be required to:
- keep the peace and be of good behaviour;
- report to the provincial director and be under his
or her supervision;
- inform the provincial director immediately on
being arrested or questioned by police;
- report to the police or any named individual, as
instructed by the provincial director;
- advise the provincial director of the young
persons address of residence, and immediately report any change
- in that address,
- in the young persons occupation, employment,
training, education, or volunteer work,
- in the young persons family or financial
situation, and
- that was likely to affect the young persons
ability to comply with the conditions of the sentence; and
- not own, possess, or have control over any weapon,
ammunition, explosive, etc.
In addition, clause 96(2) would
enable the provincial director to set any additional conditions that would promote the
young persons reintegration into the community and adequately protect the public. In
doing so, the provincial director would have to take into account the nature of the
offence and the young persons ability to comply with the conditions.
b. Conditions for Conditional
Supervision
The application of conditions to
young persons being released on conditional supervision at the end of the custodial
portion of a youth sentence under clause 41(2)(p) (murder) or clause 41(2)(q) (intensive
rehabilitative custody and supervision) are discussed in clause 104. The young person
would be brought before the youth justice court one month before the end of the custodial
portion of the sentence and the court would, after a hearing, set the conditions for the
young persons conditional supervision. The court would be assisted in doing so by a
report on the case prepared and submitted by the provincial director.
Clause 104(2) sets out a series
of mandatory conditions, while clause 104(3) would provide for various discretionary
conditions that the court could impose. The conditions would be the same as those
currently applicable under section 26.2 of the YOA. The mandatory conditions would include
all those set out in the preceding section as applicable to supervision under clause 96(1)
(above). In the case of conditional supervision, however, a young person would also
be automatically required to comply with any reasonable instructions attached by the
provincial director to prevent a breach of a condition or to protect society (see clause
104(2)(h)). The additional conditions that the youth justice court could impose under
clause 104(3) would be that the young person
- on release, go directly to his or her place of
residence or to any other place;
- make reasonable efforts to obtain and maintain
suitable employment;
- attend any appropriate place of learning,
training, or recreation, if the court was satisfied that a suitable program was available
there for the young person;
- reside with a parent or other appropriate adult
who was willing to provide for the care and maintenance of the young person;
- reside in any place that the provincial director
might specify;
- remain in the territorial jurisdiction of one or
more courts named in the order; and
- comply with any other condition set out in the
order that the court considered appropriate, including conditions for securing the young
persons good conduct and preventing his or her reoffending.
Pursuant to clause 104(8), the
youth justice courts order setting a young persons conditions for release on
conditional supervision could be reviewed by the court of appeal on an application by the
young person or the provincial director.
9. Detention beyond the Custodial Portion
a. Application by Provincial Director
Although, according to clause
41(2)(n), (p), or (q) a portion of the term of a youth sentence would be spent under
supervision or conditional supervision in the community, young persons could in certain
cases be detained longer, up to the end of the full term of their sentences. Similar
provisions are available under the Corrections and Conditional Release Act for the
detention of federal prisoners during their statutory release period.
Under clause 97, the provincial
director could apply to the youth justice court to make such an order, where the
provincial director, the young person, and a parent of the young person had an opportunity
to be heard, and where the court was satisfied that there were reasonable grounds to
believe that:
- the young person was likely to commit a serious
violent offence before the expiry of the sentence; and
- conditions would not be adequate to prevent the
commission of the offence.
In making this determination, the
court would have to consider any relevant factor, including:
- evidence of a pattern of persistent violent
behaviour and, in particular,
- the number of offences committed by the young
person that caused harm to another person,
- difficulties in controlling violent impulses to
the point of endangering the safety of others,
- the use of weapons in the commission of any
offence,
- explicit threats of violence,
- brutal behaviour associated with the commission of
an offence, and
- a substantial degree of indifference to the
consequences for others of the young persons behaviour;
- psychiatric or psychological evidence that, as a
result of a physical or mental illness or disorder, the young person was likely to commit
a serious violent offence before the expiry of the sentence;
- reliable information that satisfied the youth
justice court that the young person was planning to commit a serious violent offence
before the end of the sentence;
- the availability of adequate supervision programs
in the community for the protection of the public;
- any increased likelihood that the young person
would reoffend if he or she served the entire sentence in custody; and
- evidence of a pattern of committing offences
against the person while on supervision or conditional supervision in the community.
In making its determination, the
youth justice court would have the benefit of a report that the provincial director would
have to have had prepared and submitted (clause 98).
b. Application by Attorney General
Under clause 103, a similar order
could be obtained on the application of the attorney general, but only in the case of
youth sentences under clause 41(2)(p) (murder) or 41(2)(q) (intensive rehabilitative
custody and supervision). The applicable provisions are drawn from section 26.1 of the
YOA. The process would be similar to that described above with respect to an application
by the provincial director. However, the test would be that the young person was likely to
commit an offence causing death or serious harm to another person before the end of the
sentence. Moreover, in a clause 103 application, the court would not need to consider
factors e) and f) above under clause 97.
c. Review of Order by Court of Appeal
An order by the youth justice
court under clause 97 or 103, detaining a young person beyond the custodial portion of his
or her youth sentence would be reviewable, on application, by the court of appeal (clause
100).
10. Breach of Conditions
Clauses 101, 102, and 105 to 108
deal with situations where young persons released into the community for a portion of a
custodial youth sentence have violated the conditions of their release. The provisions are
similar to those in sections 26.3 to 26.6 of the YOA. Unlike the YOA, however, the
provisions of the bill cover two distinct scenarios: where there was a breach of a
condition of supervision imposed under clause 96; and where there was a breach of a
condition of conditional supervision imposed under clause 104. There is considerable
overlap among these provisions.
The provincial director, where he
or she had reasonable grounds to believe that a young person had breached, or was about to
breach, a condition of his or her supervision imposed under clause 96, could, in writing:
(a) permit the young person to continue to serve the sentence in the community on the same
or different conditions; or (b) if satisfied that the breach was serious and increased the
risk to public safety, order that the young person be remanded to custody until a review
was conducted (clause 101).
Clause 105 would make similar
provision for cases involving a breach, or potential breach, of a condition of conditional
supervision. Here, the provincial director would, at least initially, have to suspend the
conditional supervision and remand the young person into custody.
Once the young person had been
apprehended and remanded into custody, clauses 101(2) and 107 would require the provincial
director to review the case without delay and, within 48 hours, either cancel the order
remanding the young person to custody pending a review (in a case of conditional
supervision, cancel the suspension of the supervision), or refer the case to the youth
justice court.
After giving the young person an
opportunity to be heard, the youth justice court, if it was not satisfied that the young
person had breached, or was about to breach, the conditions of his or her supervision,
could order that the young person continue the supervision portion of the sentence on the
same or different conditions (clause 102(1)(a)). If, however, the court was satisfied that
the young person had breached, or was about to breach, one of his or her conditions, it
would have to: a) vary or replace the young persons supervision conditions; or, b)
if satisfied that the breach was serious, order that the young person remain in custody
for a period not exceeding the remainder of the sentence (clause 102(1)(b) and (2)).
Clause 108 would make similar provision for cases involving conditional supervision but,
unlike a case of supervision (see clause 102(1)(a)), the court could not vary the
conditions unless it was satisfied that there was, or would have been, a breach of the
conditions (see clause 108(1)).
An order made by the youth
justice court as a result of a finding that there had been a breach of a condition could,
on application, be reviewed by the court of appeal under clause 100.
G. Part 6: Publication, Records and Information
1.
Introduction
Part 6 would maintain the current
approach of protecting the identities of young persons involved with the criminal justice
system, while broadening the circumstances in which their names could be published. At
present, the rule of confidentiality under the Young Offenders Act prevails in most
cases, except where a young person has been transferred to adult court. Youth court judges
can permit short-term publication of the name of a young person who is at large and a
danger to others, where such publication might assist in his or her apprehension. A young
offenders identity can also be made known to school officials where necessary to
protect staff or students.
The changes proposed in this Part
would adjust the circumstances in which it would be permissible to publish information
about youths involved with the criminal justice system. The names of all youths who
received adult sentences could be published, as could the names of those given youth
sentences for presumptive offences; in the latter case, judges would have discretion to
order that a young persons name not be made public. Importantly, the provisions
permitting publication would apply to youths who were being sentenced, thereby extending
the prohibition against publication for youths accused but not convicted of offences.
Under the YOA, publication of information about a young offender is permitted as soon as
the trial has been transferred to adult court.
The changes in the area of
keeping and disclosing records would be consistent with the policy of treating young
persons who commit the most serious offences in the same way as adult offenders. Under the
bill, the records of youth who received adult sentences would be treated in the same way
as are the records of adult offenders. Youth records, as is the case under the YOA, would
have a limited existence, in keeping with the goal of promoting the rehabilitation of
young persons convicted of youth crime. The bill would also clarify details of the
record-keeping system for youth records, and set out procedures by which authorized
individuals - such as police officers, victims and school authorities - could access youth
records.
2. Protection of Privacy of Young Persons
Clause 109(1) of Bill C-3 would,
subject to exceptions, prohibit the publication of the name of or other information about
a young person that would identify him or her as a young person dealt with under the Act.
Subsections (2) to (6) would spell out the circumstances in which the name of such a young
person could be published.
Clause 109(2) would permit the
publication of information about a young person who was subject to an adult sentence, as
section 38(1) of the YOA does with respect to a young offender who has been transferred to
adult court. Unless a publication ban were ordered under clause 64 or 75, clause 109(2)
would permit the publication of information about a young person subject to a youth
sentence for a presumptive offence. Note that clause 75 of the bill, discussed above,
would permit a youth justice court to order a ban on publication in cases involving
presumptive offences. Clause 64 would require the youth justice court to order a
publication ban where the Attorney General decided to seek a youth sentence in the case of
a clause 2(1)(a) presumptive offence (murder, attempted murder, manslaughter or aggravated
sexual assault).
The discretion to allow
publication of the names of youths subject to youth sentences for presumptive offences
would represent a change from the current provisions of the YOA, under which young
offenders names are generally made public only when their cases are transferred to
adult court.
Information about the young
person could also be published under clause 109(2)(c) if it was done in the course of the
administration of justice, and not simply to make the information known in the community.
This limitation is currently in place under section 38(1.1) of the YOA.
Upon reaching the age of 18,
young persons whose privacy had been protected by clause 109(1) and who were not still in
custody could publish information about themselves (clause 109(3)). This is consistent
with the policy aim of the general prohibition on publication, which is to protect the
young offender from the stigma of publication. Once they reached adulthood, youths dealt
with under the Act could choose to make information about their own lives public, provided
they were not still in custody. This qualification is intended to prevent young persons
from using publication to build up a criminal reputation while in a youth facility. Young
persons (under 18) who would otherwise be protected from publication by clause 109(1)
could apply under clause 109(6) for an order permitting them to publish identifying
information about themselves. To make such an order, the court would have to be satisfied
that the publication would not be contrary to the young persons, or the public,
interest.
Under clause 109(4), police
officers could apply for orders permitting the publication of identifying information
about young persons when necessary to apprehend a youth who posed a danger to others. Such
orders would be limited to five days under clause 109(5). This provision would seem
consistent with the Standing Committees recommendation that youth court judges be
given discretion to allow the general publication of the name of a young offender in
circumstances where persons were at risk of serious harm and where, for safety reasons,
the public interest required it (Recommendation 13). A similar power applies under section
38(1.2) of the YOA, subject to a two-day limitation period.
Clause 110(1) would continue the
prohibition under the YOA against publication of information that would identify any child
or young person as a victim of an offence by a young person, or as a witness in connection
with such an offence. The child or young person thus protected could publish the relevant
information after reaching the age of 18 (clause 110(2)). Before age 18, such a child or
young person could also apply to the youth justice court, under clause 110(3), for an
order permitting publication of the information. This request could be granted if the
court were satisfied that this would not be contrary to the child or young persons
interest, or to the public interest.
Clause 111 would provide that,
once information had been published under clause 109 or 110, it would no longer be subject
to a ban on publication under either clause. This provision is necessary because
information that has been published becomes generally known, so that there is no longer
any policy reason to prohibit its publication. Once a young person had identified him or
herself as a young offender, victim or witness, this provision would permit others to
publish information or commentary about the disclosure.
3. Fingerprints and Photographs
Clause 112 clarifies that the Identification
of Criminals Act applies to young persons, so that their fingerprints and other
measurements could be taken only in accordance with that Act. This clause is consistent
with section 44 of the YOA.
4. Records That Might Be Kept
Under clause 113(1), the records
of a youth justice court, review board or any court dealing with proceedings under Bill
C-3 would be records subject to Part 6 of the bill. Any police force involved in the
investigation of an offence by a young person would be permitted to keep records related
to the offence under clause 114(1) (as they currently may under section 42 of the YOA),
which would be subject to this Part (clause 114(1)). Where a young person was charged with
an indictable offence, to which the Identification of Criminals Act applies,
records including fingerprints or other measurements under that Act could be provided to
the RCMP. If the youth was convicted, such records would have to be provided to the RCMP,
under clause 114(2). The RCMP would be required under clause 114(3) to keep records
received under that clause. Clauses 114(2) and (3) are consistent with section 41 of the
YOA.
Clause 115, dealing with
government and private records, would replace section 43 of the current legislation, to
reflect changes proposed in the bill, such as the replacement of "alternative
measures" by "extrajudicial measures." The only additional element would be
the inclusion of a provision authorizing government departments or agencies to maintain
records obtained for the purpose of administering orders under the Firearms Act or
sections 810-810.2 of the Criminal Code (which deal with sureties to keep the
peace, or "peace bonds"). Records subject to this Part would be all those
records relating to offences by young persons that are kept by government departments or
agencies, and those kept by professionals and organizations for the administration of
extrajudicial measures or a sentence.
5. Access to Records
Under clause 116, once any
applicable appeal period had expired, records relating to offences resulting in adult
sentences would be dealt with as adult records and the special protections afforded youth
records by clauses 117 to 128 of the bill would not apply. This is consistent with the
YOA, under which records of youths transferred to adult court are treated like adult
records. Where an adult sentence was imposed, the finding of guilt by the youth justice
court would be deemed to be a conviction for the purposes of the Criminal Records Act
(clause 116). Under the Criminal Records Act, records are sealed only by the
granting of a pardon.
As is the case under the YOA,
clause 117(1) would provide that youth records, meaning all young persons records
except those that had resulted in adult sentences, would be inaccessible except as
permitted under the bill. Records would be defined under clause 2 of the bill as any thing
containing information that was created or kept for the purposes of the bill or for the
investigation of an offence that was or could be prosecuted under the bill. The
prohibition against providing access to youth records would not apply as between persons
employed in keeping or maintaining such records (clause 117(2)).
Clause 118(1) would establish a
list of persons who would be given access to court records and could be given access to
police, government and other records. Access would be particularly limited with respect to
records of warnings, cautions and referrals, medical or psychological reports,
pre-sentence reports and DNA analysis. Clause 118(2) would specify the period during which
such access could be granted, which would be a function of the verdict, the severity of
the offence and the manner of prosecution, and whether other offences were committed
during the period. If a new offence were committed during the access period, the period
would start running again, with the record of the first offence being accessible
throughout the period in which the record of any subsequent offence was accessible. These
provisions are substantially similar to sections 44.1 and 45(1) of the YOA.
Further proposed limitations on
access to youth records are set out in clause 118(3) to (10). Access to records regarding
extrajudicial measures would be restricted under clause 118(4). Further restrictions on
access to medical and psychological assessments, DNA analysis, and pre-sentence reports
would be set out in clause 118(5) and (6). Access to records would not necessarily make
them admissible in evidence (clause 118(7)); this would reflect section 44.1(3) of the
YOA. Records made available for research purposes could be disclosed in ways that did not
identify the young persons involved (clause 118(8)). If a subsequent offence was committed
after the young person had become an adult, and before the period of accessibility of the
youth record had expired, then the youth record would be treated as an adult record and
would be subject to the Criminal Records Act (clause 118(9)).
Clause 119 would provide for the
RCMP central registry to retain records for an additional period, and to allow even more
limited access to them than during the access period under clause 118. There would be a
distinction between offences listed in the Schedule to the bill, including some of the
most serious offences in the Criminal Code, and other offences, with records
relating to offences set out in the Schedule and presumptive offences being accessible for
longer periods of time and to a broader list of persons. Records relating to presumptive
offences could be kept in the RCMP registry indefinitely.
In relation to the
records-keeping clauses, 118 and 119, clause 120 would provide that if the Crown failed to
make an election in relation to a hybrid offence, that offence would be deemed to be a
summary conviction offence. This would be identical to the effect of the current section
45(5) of the YOA.
Under clause 122, there would be
access to records after the expiry of the access periods set out in clauses 118 and 119
for administration or research purposes, on the order of a youth justice court judge.
Clause 123 would clarify that young persons would have access to their own records at any
time, so long as the records existed.
The circumstances in which
certain records could be disclosed by specific persons, including police officers, the
Attorney General and youth workers, for a variety of specific purposes are set out in
clause 124. These purposes would include criminal investigations, disclosure to a
co-accused, extradition proceedings, and the preparation of reports. Clause 124(5) would
permit disclosure to professionals or schools involved in the care or supervision of a
young person where necessary for compliance with a probation or supervision order, to
ensure safety of others, or to facilitate the young persons rehabilitation.
Disclosure under clause 124 could be made only within the period of access to the records
set out under clause 118(2).
A youth justice court could order
the disclosure of information necessary to warn a specified person or persons about a
danger posed by a young person who had been convicted of an offence involving serious
personal injury (clause 126). Unless the young person could not be located, he or she
would be given an opportunity to be heard on the application. Again, such an order would
be subject to the applicable access period in clause 118(2).
Clause 127 would regulate access
to and disposal of records after the expiration of the access period. At such time, the
records could be destroyed or transmitted to the National Archivist for Canada or a
provincial archivist, at the discretion of the person who held the record. Records held in
Archives could be disclosed for research or statistical purposes, provided that the method
of disclosure would not identify the young person involved (clause 125). Records held in
the RCMP central registry would have to be destroyed at the end of the access period under
clause 118 or 119, unless they were required by the National Archivist of Canada.
A recipient of information
disclosed under the bill could only make further disclosure of the information where
authorized under the bill (clause 128).
H. Part 7: General Provisions
1.
Exclusion from Hearing
While it is a general rule,
indeed a right, that criminal proceedings should be conducted in public and in the
presence of the accused, the criminal law provides for certain exceptions to these
requirements. Section 486 of the Criminal Code gives courts the power to exclude
members of the public in order to maintain order, protect public morals, or for the proper
administration of justice, including the protection of child and youth witnesses in
certain cases. Moreover, section 650(2) of the Criminal Code provides that,
notwithstanding the general requirement in section 650(1) that the accused be present
during his or her trial, the court may permit the accused to be absent, or have the
accused removed, where he or she is disrupting the proceedings or where the accuseds
mental condition might be adversely affected while his or her mental fitness is under
consideration.
In the context of youth criminal
justice proceedings, section 39 of the YOA incorporates and expands upon the general power
of judges under the Criminal Code to exclude persons from criminal proceedings.
Clause 131 of the bill would effectively reproduce section 39 of the YOA.
2. Offences and Punishment
a. Overview
Clauses 135 to 138 of the bill
would create a series of offences in order to enforce various provisions of the bill and
the YOA.
b. Interference with Youth Sentence
Clause 135 would effectively
reproduce YOA section 50 and make the following offences punishable on an indictment by up
to two years imprisonment or on summary conviction:
- inducing or assisting a young person unlawfully to
leave a place of custody or other place in which he or she had been placed in accordance
with a youth sentence under the bill or a YOA disposition;
- unlawfully removing a young person from a place
described in a);
- knowingly harbouring or concealing a young person
who had unlawfully left a place described in a);
- wilfully inducing or assisting a young person to
breach or disobey a term or condition of a youth sentence or other order of the court, or
of a YOA disposition; and
- wilfully preventing or interfering with the
performance of a term or condition of a youth sentence or other order of the court, or of
a YOA disposition.
These offences would be under the
absolute jurisdiction of the provincial court. In other words, in the prosecution of an
adult for such an offence, the summary trial procedure (i.e., trial by judge alone with no
preliminary inquiry) would apply, even if the Crown elected to proceed by indictment.
c. Failure to Comply with Youth Sentence
Clause 136 would create a summary
conviction offence for young persons who wilfully failed to comply with the terms of their
youth sentences or YOA dispositions. This offence would be applicable to a breach of the
following sentences: conditional discharge; fine; payment of damages; restitution of
property; compensation in lieu of restitution; payment in kind or by way of personal
services in lieu of damages or compensation; community service with supervision;
prohibition order;(25) probation; intensive support and
supervision program; attendance at facility offering program; and an order imposing other
conditions. Clause 136 is similar to YOA section 26; however, clause 136 would extend this
breach of sentence offence to cover conditional discharges and prohibition orders as well
as certain of the new sentences that would be available under clause 41(2) of the bill.
d. Breach of Publication, Records and Information
Provisions
Clause 137 would replicate YOA
section 46, making it an offence punishable by imprisonment for up to two years on an
indictment, or by summary conviction, to violate the various prohibitions in Part 6 of the
bill (and under the YOA) with respect to publication, access to, and disclosure of,
information relating to proceedings against young persons. As with the offences under
clause 135 (see above), offences under clause 137 would be under the absolute jurisdiction
of the provincial court.
e. Breach of Pre-Sentencing Detention Provisions
Clause 138(1) would make it an
offence punishable on an indictment by up to two years imprisonment, or on summary
conviction: for anyone who wilfully violated the rules in clause 30 regarding
pre-sentencing detention of young persons; or for a young person or a "responsible
person" who wilfully failed to comply with an undertaking under clause 31(3)
(placement with responsible person as alternative to pre-sentencing detention). Violation
of the corresponding YOA provisions (sections 7 and 7.1(2)) would be prohibited under
clause 138(2), but only as a summary conviction offence; this is consistent with YOA
section 7.2.
f. Use of Prohibited Employment Application Form
Clause 138(3) would maintain the
offence, currently found in YOA section 36(4), of using, or authorizing the use, contrary
to clause 81(3), of an employment application form in the federal public sector, or a
federally regulated business, that requires the disclosure of a finding of guilt under the
future YCJA or the YOA where the sentence or disposition has been completed.
3. Application of the Criminal Code
a. General Applicability of Criminal Code Provisions
Like YOA section 51, clause 139
would provide that, except as inconsistent with the bill, the provisions of the Criminal
Code would apply with respect to offences alleged against young persons, with any
necessary modifications.
b. Mental Disorder
Clause 140 would effectively
re-enact YOA section 13.2 with respect to the application of the Criminal Code
provisions on mental disorder. Section 16 of the Code provides for a defence of mental
disorder, while Part XX.1 deals with mental assessment procedures and dispositions for
persons found unfit to stand trial or not criminally responsible by reason of mental
disorder.
Clause 140 would provide for the
general application of those provisions, though it would adapt certain of them to the
particular circumstances of young persons. For instance, clause 140(2) would provide that
any requirements in Part XX.1 (Mental Disorder) of the Criminal Code for the giving
of notices would be read as also requiring copies of such notices to go to a young
persons counsel and parents. Clause 140(6) would provide that, before making a
disposition in respect of a young person under Part XX.1, a youth justice court or Review
Board would have to consider his or her age and special needs and any representations by a
parent. Section 672.64 of the Criminal Code provides for the capping of
dispositions under Part XX.1 to ensure that persons found unfit to stand trial or not
criminally responsible on account of mental disorder are not subject to lengthier
restrictions on their liberty than persons who are actually convicted of the offence.
Clause 140(7) would adjust these caps to the maximum length of the youth sentence to which
the young person would be subject if found guilty of the offence. Clauses 140(8) and (9)
provide for the increase of that youth cap, however, on the application of the Attorney
General, where a young person was found unfit to stand trial for a presumptive offence, or
for an offence where notice had been given of an intention to seek an adult sentence.
Where a young person was found unfit to stand trial, a prima facie case in respect
of the offence charged would have to be made against him or her every year, rather than
every two years, in order for the court to retain jurisdiction to try the young person,
should he or she become fit (clause 140(10)). Finally, clause 140(11) would provide that
references in Part XX.1 of the Criminal Code to hospitals would have to be
construed as references to hospitals designated by the provincial Minister of Health for
the custody, treatment, or assessment of young persons.
c. Summary Conviction Procedures
Clause 141 would, similar to YOA
section 52, provide that the Criminal Code provisions on summary conviction
proceedings (Part XXVII) would apply to proceedings under the bill, whether in respect of
summary conviction offences or indictable offences, except where this would be
inconsistent with any other provision of the bill (for example, where the young person
faced an adult sentence or was being tried for murder, the bill provides for an election
of mode of trial, as in an adult case prosecuted by indictment). However, clause 141(3)
would provide that the requirement under section 650 of the Criminal Code, that
persons charged with an indictable offence be present throughout the proceedings (and not
just appear through counsel or an agent, as is permitted in summary conviction
proceedings) would apply in all youth justice cases, regardless of the offence. Moreover,
clause 141(4) stipulates that, notwithstanding the general applicability of the Criminal
Code summary conviction provisions, the general six-month limitation period for the
prosecution of summary conviction offences in section 786(2) of the Criminal Code
would not apply in indictable youth cases.
4. Evidence
a. Admissibility of Statements
i. Statements to Persons in Authority
Clause 145(1) would, like YOA
section 56(1), provide that the general law on the admissibility of statements by accused
persons would apply with respect to young persons. Basically, the common law requires
that, while a statement made by a suspect to a person in authority, such as a police
officer, may be used in evidence against that suspect, the prosecution must first
establish that the statement was voluntary; that is, that the statement was made without
fear of prejudice or hope of advantage, and was the product of an "operating
mind" capable of understanding what was being said and appreciating the consequences
of the statement.
However, clause 145(2), which is
similar to YOA section 56(2), would go beyond the common law to both codify and enhance
the protection available to young persons in this area. The clause would, however, clarify
that these special protections would apply only to young persons who were under 18 at the
time of the statement; they are not intended for the benefit of adults who might happen to
be subject to the youth justice legislation because of their age at the time of the
offence.
First of all, under clause
145(2)(a), the statement by the young person would have to have been voluntary as required
by the common law.
Second, pursuant to clause
145(2)(b), the peace officer or other person in authority to whom the statement was made
would first have to clearly explain to the young person, in language appropriate to his or
her age and understanding, that:
- the young person was under no obligation to make a
statement;
- any statement made by the young person could be
used in evidence against him or her;
- the young person had the right to consult with
counsel and a parent or other appropriate adult chosen by the young person; and
- unless the young person desired otherwise, any
statement he or she made would have to be made in the presence of counsel and/or the
parent or other adult consulted by the young person before making the statement.
Third, before the statement was
made, the young person would have to be given a reasonable opportunity to consult with
counsel and with a parent or other appropriate adult (clause 145(2)(c)).
Finally, a young person who
consulted with counsel and/or a parent or other adult would have to be given a reasonable
opportunity to make the statement in the presence of the person or persons so consulted
(clause 145(2)(d)).
However, like YOA section 56(3),
clause 145(3) would provide that the foregoing requirements under clause 145(2)(b), (c),
and (d) would not apply where the young person made a spontaneous statement to a peace
officer or other person in authority before there was a reasonable opportunity to comply
with those requirements.
A new provision, clause 145(6),
would provide that a failure to comply with the requirements in clause 145(2)(b), (c), and
(d) would not render a young persons statement inadmissible where the court was
satisfied that the admission of the statement would not bring the administration of
justice into disrepute. This test is borrowed from the test for the admissibility of
evidence obtained through a breach of the Canadian Charter of Rights and Freedoms
(see section 24(2)). Providing judicial discretion to admit statements obtained in
violation of the requirements set out in clause 145(2)(b) through (d) is intended to
prevent the loss of otherwise legal evidence through technical or minor violations of
these procedures; this is in accordance with a recommendation of the House of Common
Standing Committee on Justice and Legal Affairs.(26)
Like adults, young persons can
waive their right to consult counsel before making a statement to police. They can also
waive their unique right to consult with a parent or other appropriate adult and to make
their statement in the presence of any such persons consulted. For the waiver of such
rights to be effective, however, YOA section 56(4) requires that the waiver be videotaped,
or be in writing and contain a statement signed by the young person that he or she has
been informed of the right being waived. Clause 145(4) of the bill would maintain the YOA
section 56(4) procedure for waiver of these rights, but would add the option of
audiotaping. A new provision, clause 145(5), would, however, permit courts to admit
statements obtained without following the waiver procedure specified in clause 145(4),
provided they were satisfied that the young persons had been informed of their rights and
had, in fact, waived them.
Clause 145(7) would, like YOA
section 56(5), provide that a youth justice court could rule a statement inadmissible
where the young person satisfied the court that it had been made under duress applied by
someone other than a person in authority.
Clause 145(8) would, like YOA
section 56(5.1), prevent a young person from benefiting from a violation of the special
procedures described above where the young person had induced the violation by
misrepresenting himself or herself to be an adult. However, the person in authority to
whom the statement or waiver was made would have to have made reasonable inquiries as to
the young persons age and have had reasonable grounds for believing that he or she
was 18 or older. Moreover, the statement or waiver would, in all other circumstances, have
to be admissible (i.e., it would have to comply with the legal requirements applicable to
such statements or waivers generally under the common law and the Charter).
Under clause 145(9), a person
consulted by a young person under clause 145(2)(c) would be deemed not to be a person in
authority in the absence of evidence to the contrary. In other words, provided that they
did not amount to duress (see clause 145(7) above), threats or inducements coming from the
young persons counsel, parent or other chosen adult would generally not render the
young persons statement or confession involuntary under the law.
ii. Statements during Pre-Sentence
Assessments
Clause 146 would reproduce YOA
section 13.1 on the use of statements made by young persons during the course of
pre-sentence assessments ordered under clause 34. Clause 146(1) would provide for the
general inadmissibility of such statements in proceedings without the consent of the young
person. Clause 146(2), however, would provide that such statements could be admitted into
evidence for certain specific purposes, such as determining mental fitness; determining
whether the young person had been suffering from a mental disorder at the time of the
offence; dealing with subsequent inconsistent testimony by the young person by challenging
his or her credibility, or by establishing perjury; or in making certain decisions
relating to the young persons conditional release from custody (i.e., conditional
supervision).
b. Establishing the Age of the
Accused
Establishing the age of an
accused person is particularly important in youth justice proceedings because it directly
affects the application of the youth justice legislation and the jurisdiction of the youth
justice courts. Thus, clause 147 would, like YOA section 57, provide particular rules for
establishing the age of a person, such as the use of parents testimony, certain
records, and any inferences that the court is able to draw from the persons
appearance or statements made in giving evidence.
5. Creation and Funding of Programs
Clauses 155 and 156 of the bill
would provide for arrangements between different levels of government for the funding and
establishment of programs and services to be provided under the bill.
Clause 155 would effectively
re-enact YOA section 70 which provides for payments by the federal government to provinces
or municipalities for costs incurred in the provision of services to young persons dealt
with under the bill. Such payments could be made pursuant to an inter-governmental
agreement entered into by any federal minister with the approval of the Governor in
Council.
Clause 156 would provide that the
Attorney General of Canada or a minister designated by the provincial government could
establish the following types of community-based programs:
- alternatives to judicial proceedings, such as
victim-offender reconciliation, mediation and restitution programs;
- alternatives to pre-sentencing detention, such as
bail supervision programs; and
- alternatives to custody, such as intensive support
and supervision programs (see clause 41(2)(l)), and programs in respect of which
attendance orders (see clause 41(2)(m)) could be made.
6. Miscellaneous
Clauses 129 and 130 would provide
for the disqualification of youth justice court judges from sitting in certain cases, and
for the substitution of youth justice court judges where the original judge was unable to
continue with the case. These provisions would replicate YOA sections 15 and 64.
Clause 132 would reproduce YOA
section 18 providing for the transfer of charges between provinces.
Clauses 133 and 134 would
reproduce YOA sections 48 and 49 on the forfeiture of recognizances in youth justice court
cases.
Clauses 142 to 144 would provide
for the application of special rules for process issued in the youth justice court:
summary conviction and indictable offences could be charged in the same information and
tried jointly; and youth justice court subpoenas and warrants would be effective
throughout Canada. The same provisions are found in YOA sections 53 to 55.
Clauses 148 to 152 would
essentially reproduce the provisions in YOA sections 58 to 63 concerning various
evidentiary matters of a procedural or technical nature.
Clauses 153 and 154 would
effectively re-enact YOA sections 66 and 67 to provide for the prescription of forms for
youth justice court proceedings and for the making of regulations by the Governor in
Council for prescribing forms, establishing uniform rules of court, and, generally, for
carrying out the purposes of the bill.
COMMENTARY
This bill, as was the case with
the Young Offenders Act, has been the object of widely divergent opinion. One of
the goals of this legislative initiative was to restore confidence in the youth criminal
justice system by repealing and replacing, it in its entirety, the present law, which has
been largely discredited in the eyes of many opinion-makers.
Sharp criticism of the bill comes
both from those who find it is too punitive, and those who believe it is not tough enough
in dealing with cases of serious youth offending. There is also a body of opinion that
supports the bill because it contains new elements that are considered an improvement on
the present legislation.
Those who believe the bill is too
punitive argue that it focuses on the offence committed by the young person, to the
exclusion of the context in which the offending took place. They argue that the bill
adopts "protection of the public" as its primary guiding principle at the
expense of the rehabilitation and reintegration of young offenders. It is also suggested
that the bill would introduce many elements of the adult criminal justice system into the
youth criminal justice system, to the detriment of the young offenders to be processed by
it.
Those who believe the bill is not
tough enough argue that the penalties available for the most serious cases of youth
offending are not sufficient and that such cases should be automatically processed through
the adult criminal justice system. It is suggested that deterrence and denunciation of
youth criminal offending are not given sufficient importance in the bill.
According to some critics, the
minimum age for youth criminal justice system processing should be reduced in some
circumstances to age 10, in order to deal with youth offending where education, mental
health, and child welfare/protection approaches are inadequate. Some propose that the
upper age for youth criminal justice processing should be set at 16, with adult
consequences for adult offending.
Many of those who support the
bill like many of the new elements that it would add to the youth criminal justice system.
They argue that the statements of philosophy set out in different parts of the bill
provide guidance to those who would have to implement, and be subject to, this
legislation. They suggest that the extrajudicial measures, conferencing, and youth justice
committee measures in the bill would provide opportunities for early intervention outside
of the youth justice system to address youth offending. They also argue that many of the
sentencing and other options proposed should reduce the now too-high rate of youth
incarceration.
Many commentators from Quebec
have claimed that that province has adopted a unique, integrated, diversion-based approach
to implementing the Young Offenders Act which has resulted in fewer young people
being processed by the courts and incarcerated. It is said that this legislation works
well, rendering Bill C-3 unnecessary. Other jurisdictions are urged to adopt an approach
to youth offending similar to that of Quebec.
Many commentators have said that
legislative change is only part of an effective strategy to renew youth justice. It must
be accompanied by a commitment to ensuring an adequate level of resources and the
development of appropriate facilities and programs to implement it effectively.
Some have suggested that most, if
not all, of the new elements in the bill could have been put into place by a moderate
number of amendments to the present legislation.
Many have complained about the
length and complexity of the bill. They argue that those who have to implement the bill
will require much training and that it will be difficult to educate the public and young
people about its content. They suggest that the Young Offenders Act is a model of
brevity and clarity by comparison.
(1) For a more detailed review of the Young Offenders Act
and its evolution, see: Philip Rosen, The Young Offenders Act, Current Issue Review
86-13, Parliamentary Research Branch, Library of Parliament.
(2)
House of Commons, Standing Committee on Justice and Legal Affairs, Thirteenth Report, Renewing
Youth Justice, 2nd Session, 35th Parliament, April 1997, p. 12 and 15.
(3)
Department of Justice, "Fact Sheet: Youth Justice Statistics," Ottawa, March
1999; Department of Justice, A Strategy for the Renewal of Youth Justice: Legislative
and Supporting Program Components, Ottawa, 12 May 1998; and Renewing Youth Justice,
Chapter 6.
(4)
Renewing Youth Justice, p. 55 (Recommendation 7).
(5)
Ibid, p. 45.
(6)
In Quebec, the provincially appointed Court of Quebec tries such cases when the accused
has elected to be tried by a judge without a jury. As in the rest of Canada, however, jury
trials in Quebec are presided over by federally appointed superior court judges.
(7)
Renewing Youth Justice, p. 55-57.
(8)
Ibid., p. 49-55 and recommendation 7.
(9)
Article 37(c) of the Convention obliges States Parties to ensure that:
Every child deprived of liberty
shall be treated with humanity and respect for the inherent dignity of the human person,
and in a manner which takes into account the needs of persons of his or her age. In
particular, every child deprived of liberty shall be separated from adults unless it is
considered in the childs best interest not to do so
Canada has made the following
reservation to this provision of the Convention: "The Government of Canada accepts
the general principles of article 37(c) of the Convention, but reserves the right not to
detain children separately from adults where this is not appropriate or feasible."
(10)
This interpretation has been confirmed by the Supreme Court itself in: R. v. C.
(T.L.), [1994] 2 S.C.R. 1012, 92 C.C.C. (3d) 444. Since the issue had been raised in
response to a motion, and since there had not been adequate argument or the required
notice to the various Attorneys General, the Court declined to address the argument that
the deprivation of this avenue of appeal in youth cases amounted to unconstitutional
discrimination on the basis of age contrary to section 15(1) of the Canadian Charter of
Rights and Freedoms.
(11)
For preparing a pre-sentence report, access to records of previous findings of guilt
against a young person under the bill in respect of which a youth sentence was imposed,
would be subject to the access periods set out in clause 118(2) of the bill (see Part 6).
Clause 118(2) would restrict access to such records, depending on the offence and the
sentence imposed, to periods ranging from two months from the finding of guilt, where a
reprimand was imposed (see "Youth Sentences" below), to five years from the
completion of the sentence, in the case of indictable offence where a sentence other than
a reprimand or a discharge was imposed.
(12)
Where an extrajudicial sanction was used, clause 118(2) would limit access to the record
to a period of two years from the date that the young person consented to the sanction.
(13)
In addition to any other youth sentences that might obviously be incompatible,
clause 41(10) stipulates that the following youth sentences could not be combined
with a conditional discharge: a probation order under clause 41(2)(k), an intensive
support and supervision order under clause 41(2)(l), and a program attendance order under
clause 41(2)(m).
(14)
Clause 53(1) would require youth justice courts, in deciding to sentence the young person
to pay a fine under clause 41(2)(d), to consider the young persons ability to pay.
Clause 53(2) would permit a young person to pay off all or part of a fine under this
clause by performing work in a program established by the province for that purpose.
(15)
Clause 53(1) would require youth justice courts to consider the young persons
ability to pay in deciding to sentence the young person to pay compensation under clause
41(2)(e). Where a youth justice court was contemplating such an order, clause 53(4) would
permit the court to receive representations from the person to be compensated.
(16)
Where a youth justice court was contemplating such an order, clause 53(4) would permit the
court to receive representations from the person to whom restitution would be made.
(17)
Clause 53(1) would require youth justice courts, in deciding to sentence the young person
to compensate an innocent purchaser under clause 41(2)(g), to consider the young
persons ability to pay. Where a youth justice court was contemplating such an order,
clause 53(4) would permit the court to receive representations from the innocent
purchaser.
(18)
Where a youth justice court was contemplating such an order, clause 53(4) would permit the
court to receive representations from the person to be so compensated, and, pursuant to
clause 53(6), the persons consent would be required before such an order could be
made. Moreover, pursuant to clause 53(7), before making such an order, the court would
have to be satisfied that the young person was a suitable candidate for it, and that it
would not interfere with his or her normal hours of work or education. Clause 53(8) would
limit the scope of such an order to those personal services that could be performed within
240 hours over a period of not more than one year.
(19)
Before making such an order, clause 53(7) would require that the court be satisfied that
the young person was a suitable candidate for it, and that it would not interfere with his
or her normal hours of work or education. Clause 53(8) would limit the scope of such an
order to those services which could be performed within 240 hours over a period of not
more than one year. Pursuant to clause 53(9), such an order could only be imposed where
the services were part of a program approved by the provincial director, or where the
court was satisfied that the recipient of the services agreed to their performance by the
young person.
(20)
Section 161 of the Criminal Code provides for the making of an order prohibiting
persons convicted of certain offences from attending near public places where persons
under 14 are likely to be present, or from obtaining employment in which the person would
be in a position of trust or authority towards persons under 14.
(21)
Before making such an order, clause 53(7) would require the court to be satisfied that the
young person was a suitable candidate for the program, and that it would not interfere
with his or her normal hours of work or education.
(22)
Clause 41(5) would restrict the availability of this sentence to non-violent offences.
Curiously, however, the bill says nothing about the possibility of imposing lesser youth
sentences (such as a reprimand or a discharge), or even using extrajudicial measures (see
Part 1 of the bill), in respect of violent offences.
(23)
Renewing Youth Justice, p. 65.
(24)
Ironically, if such a person was sentenced as an adult, there would still be some
discretion to place him or her in a youth facility, although there would be a strong
presumption against it (see clause 76(8)).
(25)
This new offence would, however, apply only to a breach of prohibition order imposed under
the future YCJA (clause 41(2)(j)). In the case of a prohibition order imposed under
section 20(1)(h) of the YOA, the legislation which provides for the particular prohibition
in question would remain the basis for a charge of breaching the order.
(26)
Renewing Youth Justice, p. 71 (recommendation 14).
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