The YCJA is a piece of legislation which governs criminal justice for young people over the age of 11 and below the age of 18. Its primary purpose is to create a criminal justice regime for young people that balances their best interests with the best interests of victims and society at large. It does so by pursuing proportionate justice outcomes that hold young people charged with crimes accountable for their actions, while taking into account their diminished moral blameworthiness, and without overly relying on incarceration for discipline. In the pursuit of this purpose, the YCJA places emphasis on extrajudicial measures as a means of holding young people accountable for their offending behaviour. However, more serious consequences, including time in custody, are still available. In lieu of detailing the specific contents of the YCJA here, I thought it best to detail its most relevant portions in the form of potential blog posts in part IV of this memo.
My child has been arrested. What happens next?
If your child has been arrested, the next steps to take can be confusing. One fact that may put you at ease is that under the Youth Criminal Justice Act (YCJA), an arrest will not necessarily result in criminal charges.
Depending on the situation, the police may pursue extrajudicial measures to hold a young person accountable for their offending behaviour. Extrajudicial measures are steps taken to hold young offenders accountable outside of the court system. When the offending behaviour is nonviolent, and the young person has not previously been convicted of an offence, there is an assumption that extrajudicial measures will be adequate.
The YCJA also states that extrajudicial measures should be used whenever they are deemed adequate, even in cases where other offending behaviour of the young person in question has previously been dealt with using extrajudicial measures or where the young person in question has previously been found guilty of an offence.
Types of extrajudicial measures
One category of extrajudicial measures is warnings, cautions and referrals. A police officer may decide to pursue no further action or give the young person an informal warning instead of judicial proceedings if they deem it appropriate in the situation and in accordance with the principles of the YCJA.
The police or Crown may also issue cautions, which are considered a more formal warning to the young person. The police may also decide to refer a young person to a program or agency qualified to assist the young person in not committing future offences. However, it should be noted that neither the police nor the Crown are obligated to consider these measures and that their failure to do so will not invalidate any subsequent charges laid against a young person.
Extrajudicial sanctions are another extrajudicial measure which may be used to hold a young person accountable for their offending behaviour. They are available only if the offending behaviour cannot be adequately dealt with by warning, caution or referral.
Factors referenced in making this decision include the following:
- The seriousness of the offence
- Nature of the offence
- Number of any previous offences
- Any other relevant aggravating circumstances
They are also unavailable in situations where the young person denies participation or involvement in the commission of the offence or expresses the desire to have the charge dealt with by the youth justice court. A young person has the right to retain and instruct counsel without delay prior to making those decisions. It should also be noted that any admission of guilt made by a young person on the condition of being dealt with by extrajudicial sanctions is inadmissible in the future.
The use of extrajudicial sanctions does not remove the possibility of judicial proceedings but will lead to a dismissal of the charges if the court is satisfied that the young person has totally or partially complied with the conditions to the extent that it would be unfair to prosecute them on the charge.
In the unfortunate event the police and Crown elect not to pursue extrajudicial measures or pursue extrajudicial measures in tandem with judicial proceedings, criminal charges will be laid against the young person, and they will be tried in a youth justice court.
As with all criminal proceedings, the young person will have the option of being tried either by a judge alone or by a judge and jury. In some cases, the Attorney General may require a trial by jury, and the young person will have no choice. They will also have the option of pleading guilty or not guilty. These elections should be made after consulting with a defence attorney and in light of the specific circumstances of the case.
What rights do youth have that adults do not?
The Youth Criminal Justice Act (YCJA) codifies Canada’s commitment to the United Nations Convention on the Rights of the Child. There are four main rights of young people identified in this convention.
- Young people have the right to non-discrimination. This right guarantees that they are treated with respect and not be discriminated against regardless of their gender, economic status, religion, ethnicity, spoken language or special needs.
- Young people have the right to have their best interests considered where decisions are made that affect their lives. At a young age, it can be challenging to have these issues persist throughout your life, which is considered.
- Young people have the right to life and development. This right ensures that the government does their best to help young people live and grow to be the best they can be.
- Young people have the right to participate. This means that they have the right to give their opinion and have their voice be heard with regard to any matter that affects them.
The YCJA also outlines other rights that young people have that adults do not. For example, a young person has the right to be assisted by a suitable adult if the offender decides not to be represented by counsel at a trial, hearing or review. While this option is available, it is still inadvisable as a lawyer will produce the best outcome.
In addition, a young person has the right to be detained separately from adults. However, this right is not absolute and can be overcome if a youth justice court judge decides that it would be unsafe for the child to be detained with other young people or that no place of detention specific to young people is available within a reasonable distance.
How do sentencing times for young people differ from those for adults?
The sentences received by young people are not the same as those contained in the Criminal Code. For young people, the custody and supervision periods together generally cannot total more than two years after the date of committal, with a supervision period afterwards totalling half of the custody period.
However, there are some exceptions to this rule. For example, the maximum total custody and supervision period increases to three years if the punishment for the charge is life imprisonment, with the supervision period again equalling half of the custody period. This is also the case where a young person is charged with attempt to commit murder, manslaughter, or aggravated sexual assault.
For first-degree murder, custody and supervision can last a maximum of 10 years, with a maximum of six of those years being spent in custody. For second-degree murder, custody and supervision can last a maximum seven years, with a maximum of four of those years being spent in custody.
If a sentence is given for more than one offending behaviour, they cannot together have a duration exceeding three years unless one offending behaviour is first or second-degree murder. Where one of the offending behaviours is first or second-degree murder, the combined duration cannot exceed 10 or seven years, respectively. There is a further exception to this rule if one offence is committed after the start of but before the completion of another sentence. In such cases, the new sentence becomes added to the remainder of the original sentence.
Under what circumstances can the court impose an adult sentence on a young person?
The Attorney General can make an application for a young person to be considered liable for an adult sentence. This can happen if the young person has been found guilty of an offence where the adult sentence is more than two years, and that same offence was committed person was at least 14 years old.
Their application will be successful if they can prove that they have rebutted the presumption of diminished moral blameworthiness or culpability of the young person and that a youth sentence would not be sufficient to hold the young person responsible.
Why pleading guilty may not be in your child’s best interests
The YCJA is generally lenient on accused young people, making many defence attorneys suggest their clients plead guilty as a default. However, in some situations, this will not be in the child’s best interest.
For example, if your child commits a subsequent offence as an adult before the expiration of their record under the YCJA, then their record under the YCJA will be treated as the record of an adult and appear on their permanent criminal record. In addition, if the Attorney General is successful in pursuing an adult sentence, then a finding of guilt will lead to a conviction. This means that the charge and guilty verdict will be on your child’s permanent criminal record.
In these cases, your child’s guilty plea may negatively impact them for the rest of their life. As such, it is always recommended that you discuss the likelihood of succeeding with a plea of not guilty with a lawyer.
My child has received a sentence I believe is unfair, what can I do?
If a youth justice court believes there are grounds for review of a youth sentence, then they will conduct a review. If a young person was not sentenced under s. 42(2)(n), (o), (q), or (r), then the youth justice court may review their sentence on the grounds that either:
- The young person is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence.
- That the terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment.
In addition, any youth sentence can be reviewed if the court can be satisfied with any of the following circumstances:
- The young person has made sufficient progress to justify a change
- The circumstances that led to it have changed materially
- New services or programs are available that were not available at the time of the youth sentence
- The opportunities for rehabilitation are now greater in the community
- Any other ground that the youth justice court considers appropriate
Another option is to appeal the decision. However, for a youth justice court decision to be appealed to the SCC, leave to appeal must be granted by the SCC. If you believe that your child’s sentence should be reviewed or appealed, it is recommended that you speak to a defence attorney.
Will charges as a youth appear on my child’s permanent criminal record?
Not in most cases. If your child is charged with a crime as a youth, those charges will not generally appear on their criminal record. However, if your child commits a subsequent offence as an adult before the expiration of their record under the Youth Criminal Justice Act, then their record under the YCJA will be treated as the record of an adult and appear on their permanent criminal record.
What is a youth justice committee, and what role do they play in my child’s case?
A youth justice committee is a group of citizens that help repair the harm caused by an offending minor. Some of the responsibilities they carry out include the following:
- Advise on appropriate extrajudicial measures
- Support the victim of the alleged offence by soliciting their concerns and facilitating their reconciliation with the young person
- Ensure community support is available for the young person
- Help to coordinate between the youth justice system and any child protection agency or community group that is involved in the case.
If a youth justice committee is involved in your child’s case, they may perform one or more of these respective roles. However, they do not determine the outcome themselves.
What is a conference, and what impact will it have on my child’s case?
Conferences are convened in order to decide on matters related to a young person’s offending behaviour. These matters include advising on the appropriate extrajudicial measures, conditions for judicial interim release, and sentencing issues. Conferences can have a real impact on your child’s case and result in binding decisions.
Can my child‘s previous warning, caution or referral be used against them in court?
In short, no. Any evidence that a young person has previously committed offending behaviour to which the police or Crown decided to proceed by way of warning or less is inadmissible as evidence and cannot be used against a young person in court for a future offence.
Will my child’s charges be public knowledge?
The Youth Criminal Justice Act contains a publication ban which mandates that the name of any young person charged under it and any information related to them which would allow them to be identified not be published.
The police will keep a record of extrajudicial measures and will provide records of all charges to the RCMP, but these records are only kept for a limited amount of time, will only be available to select individuals for specific purposes, and these individuals will not be allowed to publish them. Acts involving improper access or publishing of these records are punishable by indictable offences.
However, there are some exceptions to this rule, including:
- Young people who have received adult sentences
- A young person commits a subsequent offence as an adult before the expiration of their record under the YCJA
- The publication is made in the administration of justice and not for the purpose of publication
- Self-identifying after they turn 18 and are no longer in custody or if it is not contrary to the best interests of the young person
- A youth court judge may make a temporary order permitting any person to publish information about the young offender if they are a danger or it helps apprehend them