Young Offenders Act

Youth Justice System

Youth Justice Act - Parent Information

Contrary to popular opinion the Youth Justice Act is a real criminal statute which holds young persons criminally responsible for their actions.

The consequences of a finding of guilt under the Youth Justice Act can be very serious and long lasting. Records are not erased at age 18.

Parents of children charged under the Act need to resist the temptation to bare their souls to the police.

Notwithstanding a parent's anger towards a child involved in criminal activity, a parent needs to be available to the young person for assistance at all stages of questioning, arrest, confession (if any), release from custody, and Court.

Many young persons sign away their right to consultation with parents prior to and during a police interview.

Contrary to popular opinion, young persons and their parents do not generally understand their rights and should contact a lawyer to discuss the issues and their legal rights.

The Youth Criminal Justice Act contains many provisions to increase the appropriate use of extrajudicial measures for less serious offences, including the following principles:

extrajudicial measures should be used in all cases where they would be adequate to hold the young person accountable.
extrajudicial measures are presumed to be adequate to hold first-time, non-violent offenders accountable.
extrajudicial measures may be used if the young person has previously been dealt with by extrajudicial measures or has been found guilty of an offence.

The YCJA also sets out clear objectives to guide the use of extrajudicial measures, including: repairing the harm caused to the victim and the community; providing an opportunity for victims to participate in decisions; ensuring that the measures are proportionate to the seriousness of the offence; and encouraging the involvement of families, victims and other members of the community.

The YCJA requires police officers to consider the use of extrajudicial measures before deciding to charge a young person. Police and prosecutors are specifically authorized to use various types of extrajudicial measures:

Taking no further action
Warnings are informal warnings by police officers.
Police cautions are more formal warnings by the police. The YCJA authorizes provinces to establish police cautioning programs. Based on the experience in some jurisdictions, it is expected that police cautions will be in the form of a letter from the police to the young person and the parents or they may involve a process in which the young person and the parents are requested to appear at a police station to talk to a senior police officer.
Crown cautions are similar to police cautions but prosecutors give the caution after the police refer the case to them. In one province where they are currently being used, the caution is in the form of a letter to the young person and the parents.
Referrals are referrals of young persons by police officers to community programs or agencies that may help them not to commit offences. The referral may be to a wide range of community resources, including recreation programs and counseling agencies.
Extrajudicial sanctions, the most formal type of extrajudicial measure, are what are known as alternative measures under the YOA. Unlike the other types of extrajudicial measures, they may be used only if the young person admits responsibility for the offence. The Attorney General of the province must determine that there is sufficient evidence to proceed with a prosecution of the offence. The sanctions must be part of an extrajudicial sanctions program designated by the Attorney General. The young person agrees to be subject to the sanction. If the young person fails to comply with the terms and conditions of the sanction, the case may proceed through the court process. Under the YCJA, an extrajudicial sanction could be used only if the young person cannot be adequately dealt with by a warning, caution or referral.

Conferences

In many parts of Canada, there is an increasing use of conferences to assist in the making of decisions regarding young persons who are involved in the youth justice system. In general, "conference" refers to various types of processes in which affected or interested parties come together to formulate plans to address the circumstances and needs involved in youth justice cases.

Conferences are not referred to in the YOA. They generally operate in an informal manner. They can take the form of family group conferencing, youth justice committees, community accountability panels, sentencing circles, and inter-agency case conferences. Conferences provide an opportunity for a wider range of perspectives on a case, more creative solutions, better coordination of services, and increased involvement of the victim and other community members in the youth justice system.

The YCJA authorizes and encourages the convening of conferences to assist decision-makers in the youth justice system. Under the proposed legislation, a conference is defined as a group of people brought together to give advice to a police officer, judge, justice of the peace, prosecutor, provincial director or youth worker who is required to make a decision under the Act. A conference could give advice on decisions such as:

appropriate extrajudicial measures;
conditions for release from pre-trial detention;
appropriate sentences; and
plans for reintegrating the young person back into his or her community after being in custody.

A conference could be composed of a variety of people depending on the situation. It could include, for example, the parents of the young person, the victim, others who are familiar with the young person and his or her neighbourhood, community agencies or professionals with a particular expertise that is needed for a decision. A conference could be a restorative mechanism that is focused on developing proposals for repairing the harm done to the victim of the young person's offence. It could also be a professional case conference in which professionals discuss how the young person's needs may best be met and how services in the community can be coordinated to assist the young person.

Pre-trial Detention

Most of the provisions of the YOA related to pre-trial detention would remain the same under the YCJA, including the application of the provisions of the Criminal Code. However, in response to concerns that pre-trial detention is over-used under the YOA, the YCJA includes the following changes:

Pre-trial detention is not to be used as a substitute for child protection, mental health or other social measures.
If the young person could not be sentenced to custody if convicted, the judge is required to presume that pre-trial detention of the young person is not necessary for the protection or safety of the public.
If a young person would otherwise be detained, the judge is required to inquire as to whether a responsible adult is available who would be willing to take care of the young person as an alternative to pre-trial detention.

Youth Sentences

1. Purpose and Principles of Sentencing

One of the concerns about the Young Offenders Act has been that it does not provide clear guidance to judges on sentencing. It does not provide a specific purpose of sentencing. Its principles are general, inconsistent with each other, and not ranked in terms of priority. The result is an absence of clear legislative direction to judges and others in the youth justice system.

A related concern about the experience under the YOA is the very high use of custody as a sentence, particularly for less serious and non-violent offences and for young persons who are not serious repeat offenders:

The youth incarceration rate is higher in Canada than other Western countries, including the United States.
The youth incarceration rate is higher than the adult incarceration rate in Canada.
Provinces vary considerably in their youth incarceration rates.
For eight of the nine most common offences in youth court, youth receive longer periods of custody than adults who receive custody for the same offence; in addition, youth spend more time in custody than adults with similar sentences due to the adult conditional release provisions.
About 80% of custodial sentences are for non-violent offences.
Almost half of the cases resulting in a custodial sentence fall into four categories of less serious offences: theft under $5000 (e.g., shoplifting); possession of stolen property; failure to appear; and failure to comply with a disposition (e.g., breach of a condition of probation).
Almost half of young persons whose most serious offence was failure to comply with a disposition (e.g., breach of a condition of probation) were sentenced to custody.
Many first offenders found guilty of minor theft are sentenced to custody. For example, 8% of such offenders in Ontario and over 7% in Quebec were sentenced to custody.

Specific sentencing principles emphasize that the sentence must:

not be more severe than what an adult would receive for the same offence;
be similar to youth sentences in similar cases;
be proportionate to the seriousness of the offence and the degree of responsibility of the young person;
within the limits of proportionality,
1. be the least restrictive alternative;
2. be the sentencing option that is most likely to rehabilitate and reintegrate the young person; and
3. promote in the young person a sense of responsibility and an acknowledgement of the harm done by the offence.

Custody is reserved primarily for violent offenders and serious repeat offenders. A young person cannot be committed to custody unless:

the young person has committed a violent offence;
the young person has failed to comply with non-custodial sentences;
the young person has committed a serious indictable offence and has a history that indicates a pattern of offences; or
in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that it would be impossible to impose a sentence other than custody that would be consistent with the purpose and principles of sentencing. If a judge relies on this provision, the judge must give reasons as to why the case, in his or her opinion, is exceptional.

Before imposing a custodial sentence, the court must also have considered all reasonable alternatives to custody and must have determined that there is no reasonable alternative that would be capable of holding the young person accountable in accordance with the purpose and principles of sentencing discussed above. This means, for example, that although a young person has failed to comply with previous non-custodial sentences, he or she may receive another non-custodial sentence if the court determines that it would be adequate to hold the young person accountable.