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
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"

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:

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

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.

Sentencing Digests

 * Canadian Criminal Sentencing/Cases/Young Offenders