Canadian Criminal Sentencing/Young Offenders

Introduction

Part IV of the YCJA (s.41 to 82) addresses sentencing of young offenders.

The relationship of the YCJA and the Criminal Code is addressed in ss. 140 to 142. The Criminal Code applies equally "except to the extent that it is inconsistent with or excluded by this Act" (s. 140).

The consequence of this is that the sentencing options are significantly different from the adult options of sentence as the YCJA explicitly outlines the available sentences for all young offenders.

Protection of Identity

Under s. 110 and 129 of the YCJA, any information that would identify an offender cannot be published or released to the public at any time. Likewise, under s. 111 and 129, any information that would identify a victim or witness who is a young person cannot be published or released to the public at any time.

If either s. 110 or 111 is violated, the offending person may be liable under s. 138 either on summary conviction or for an indictable offence with a maximum penalty of two years in prison.

Principles and Purpose of Sentencing

Purpose
38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold 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, thereby contributing to the long-term protection of the public.
Sentencing principles
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

– YCJA

Sentencing under the YCJA focuses on "the individual young person and how best to achieve the stated objectives of the [YCJA] in the particular circumstances."

Parliament's intention with the YCJA is to "reduce over-reliance on custodial sentences for young offenders." It further intends to "prevent youth crime by addressing the underlying circumstances leading to the offending behaviour of a youth" and "promote rehabilitation of youthful offenders, while ensuring meaningful consequences for the offending behaviour."

The objectives of the YCJA have the effect of favouring "rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity."

Denunciation plays no role in sentencing of young persons. Nor do general and specific deterrence.

Consequently, a judge may not conclude that a sentence would fail to hold the offender accountable due to the sentence's failure to meet the objectives of denunciation and deterrence.

Accountability

The principle of accountability drives "drives the entire YCJA sentencing regime."

Accountability is achieved by imposing "meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society"

Factors of Sentencing

Factors to be considered
(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

– YCJA

Available Dispositions

Section 42(2) sets out all youth sentences available to a sentencing judge:

1. reprimand
2. absolute discharge
3. conditional discharge
4. fine
5. damages
6. restitution
7. other compensation such as personal service
8. community service
9. prohibition, seizure or forfeiture orders,
10. probation of two years or less
11. intensive support or supervision program
12. non-residential programs of no more than 6 months
13. custody and supervision order
14. deferred custody and supervision order
15. intensive rehabilitative custody and supervision order
16. any other reasonable and ancillary conditions

Probation

An order of probation can be imposed for a period of no more than two years.

Under s. 55, the mandatory conditions consist of:

• keep the peace and be of good behaviour; and
• appear before the youth justice court when required by the court to do so.

Optional conditions include:

• report to and be supervised by the provincial director or a person designated by the youth justice court;
• notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in the young person’s place of employment, education or training;
• remain within the territorial jurisdiction of one or more courts named in the order;
• make reasonable efforts to obtain and maintain suitable employment;
• attend school or any other place of learning, training or recreation that is appropriate, if the youth justice court is satisfied that a suitable program for the young person is available there;
• reside with a parent, or any other adult that the youth justice court considers appropriate, who is willing to provide for the care and maintenance of the young person;
• reside at a place that the provincial director may specify;
• comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences; and
• not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order.

Adult Sentences

Under s. 64(1) of the YCJA the Crown may apply to the court to have the accused sentenced as an adult:

64(1) The Attorney General may, following an application under subsection 42(9) (judicial determination of serious violent offence), if any is made, and before evidence is called as to sentence or, where no evidence is called, before submissions are made as to sentence, make an application for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence, other than a presumptive offence, for which an adult is liable to imprisonment for a term of more than two years, that was committed after the young person attained the age of fourteen years.

– YCJA

Under s. 72 of the YCJA, the court determines whether the grant the request for an adult sentence:

72(1) In making its decision on an application heard in accordance with section 71, the youth justice court shall consider the seriousness and circumstances of the offence, and the age, maturity, character, background and previous record of the young person and any other factors that the court considers relevant, and

(a) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed; and

(b) if it is of the opinion that a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not have sufficient length to hold the young person accountable for his or her offending behaviour, it shall order that an adult sentence be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is with the applicant.
(3) In making its decision, the youth justice court shall consider a pre-sentence report.
(4) When the youth justice court makes an order under this section, it shall state the reasons for its decision.
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.

– YCJA

In order for the offender to be sentenced as an adult, the judge must be satisfied that the youth sentence will not be long enough to achieve the goals of accountability.

There is a presumption of "diminished moral culpability in young persons".

The burden in on the Crown to establish that a adult sentence is necessary. This includes rebutting the presumption of diminished culpability.

This burden is overcome if "the seriousness of the offence and the circumstances of the offender justify it notwithstanding his or her age."

There is not a "very heavy onus" on the Crown and does not require proof beyond a reasonable doubt. The underlying facts, however, must always be proven beyond a reasonable doubt.

The court must "weigh and balance the enumerated factors and then to decide whether a youth sentence is sufficiently long to hold a young person accountable for his or her offending behaviour".

Ancillary Orders

It is worth noting that the language of the provisions relating to SOIRA indicates that it does not apply to young offenders. DNA orders however do apply in the same way that it does to adults.

Specific Offences

Homicide

Persons under eighteen
745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served

(a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence;

(b) ten years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence; and

(c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.

1995, c. 22, ss. 6, 21.

– CCC

Sentencing Digests

• Canadian Criminal Sentencing/Cases/Young Offenders