Pocket Guide

POCKET GUIDE

YCJA YOUTH CRIMINAL JUSTICE ACT

2014 POCKET GUIDE

YCJA

YOUTH CRIMINAL JUSTICE ACT 2014 Ontario Pocket Guide Youth Criminal Justice Act Canada

This pocket guide is provided for your convenience and personal use. Paraphrases, descriptions, and formatting of sections of relevant legislation may differ from the official, printed versions. Because the guide is intended for quick reference, it follows plain language principles for wording and design.

This Guide is intended for information and use by youth justice system participants and in no way can be considered legal advice.

When accuracy is critical, please consult official sources.

This guide is based on the Nova Scotia Pocket Guide 2013 developed by the Province of Nova Scotia, copyright holder with funding from the Department of Justice Canada. The Province of Nova Scotia has granted permission to use the pocket guide.

The Nova Scotia Pocket Guide has been customized to reflect content specific to Ontario, with funding from the Department of Justice

Any person may reproduce this pocket guide without payment of royalty provided it is done accurately. LEGEND AS Adult sentence CC Criminal Code CFSA Child and Family Services Act EJM Extrajudicial measures EJS Extrajudicial sanctions IRCS Intensive rehabilitative custody and supervision order JDA Juvenile Delinquents Act JP Justice of the Peace POA Provincial Offences Act RJ Restorative justice SVO Serious violent offence SS & CA Safe Streets and Communities Act S.C. 2012, c.1 YCJA Youth Criminal Justice Act YOA Young Offenders Act YP Young person Time limit Green type indicates sections of the YCJA. Violet background indicates a legislative change under the SS & CA 2012. Violet type indicates references to section in the SS & CA 2012.

Note: The word "court" in this document means youth justice court. YCJA Table of Contents iv LEGEND CONTENTS AS Adult sentence CC Criminal Code Introduction 1 CFSA Child and Family Services Act Background 1 EJM Extrajudicial measures General Rule – Application of the CC 2 EJS Extrajudicial sanctions Declaration of Principle 3 IRCS Intensive rehabilitative custody and supervision Jurisdiction of the youth justice court 6 order Admissibility of Statements 7 JDA Juvenile Delinquents Act After a YP reaches age 18 7 JP Justice of the Peace Offences during a period that POA Provincial Offences Act includes a YP’s 18th birthday 7 RJ Restorative justice Jurisdiction of a justice of the peace 8 SVO Serious violent offence Extrajudicial Measures (EJM) 9 SS & CA Safe Streets and Communities Act What extrajudicial measures (EJM) are 9 S.C. 2012, c.1 Principles governing extrajudicial measures 10 YCJA Youth Criminal Justice Act Objectives of extrajudicial measures 11 YOA Young Offenders Act Less-formal measures 12 YP Young person More-formal measures 13 Time limit Pre-conditions for using extrajudicial sanctions 14 Green type indicates sections of the YCJA. Limitations on using extrajudicial sanctions 14 Violet background indicates a legislative change under the When an extrajudicial sanction may Not be used 15 SS & CA 2012. Informing parents of a YP who chooses Violet type indicates references to section in the SS & CA an extrajudicial sanction 15 2012. Informing a victim about a YP and an extrajudicial sanction 15 Note: The word "court" in this document means youth justice Notes to police, Crown 16 court. Pre-trial Procedures 17 Judicial interim release 17 Requirements for detention 17 Release to a responsible person 20 Election—choosing a mode of trial 22 Trial before a judge without a jury or a judge and jury 23 Youth Sentences 24 Summary 24 Purpose of youth sentence 24 Youth sentencing principles 24 Factors the court must consider in determining a youth sentence 26 Restrictions on custody 27 Other sentencing considerations 28 Imposing a youth sentence 29 Possible youth sentences 29 Other sentencing provisions 38 Prohibition orders for offences 41 Definitions for serious offence, violent offence and serious violent offence 43 Orders with probation and intensive support and supervision program 44 Starting probation or intensive support and supervision program 45 Review of sentences 46 Adult Sentences (AS) 47 Key provisions under the YCJA 48 Eligibility for an adult sentence 49 Notice of intention to seek an adult sentence 49 Application by the Crown for an AS 50 Hearing: adult or youth sentence 51 Appeals 56 Key Changes 56 References to Victims 57 Ontario Victim Services 57 General principles 58 Objectives of extrajudicial measures 58 Extrajudicial sanctions 59

YCJA Table of Contents v YCJA Table of Contents vi

Youth Sentences 24 Principles of youth sentencing 59 Summary 24 Factors to consider in youth sentencing 59 Purpose of youth sentence 24 Victim fine surcharge 60 Youth sentencing principles 24 Publication 60 Factors the court must consider Additional provisions relating to victims 60 in determining a youth sentence 26 Records and Sharing of Information 62 Restrictions on custody 27 Summary 62 Other sentencing considerations 28 General rule 62 Imposing a youth sentence 29 Records, access and time limits 64 Possible youth sentences 29 Access for schools, professionals and those Other sentencing provisions 38 involved in supervision of the young person 64 Prohibition orders for offences 41 Handling information 66 Definitions for serious offence, violent offence Adult sentences 66 and serious violent offence 43 Time periods 67 Orders with probation and intensive Exceptional cases of disclosure 69 support and supervision program 44 Effect of termination of a youth sentence 72 Starting probation or intensive support and supervision program 45 Custody, Supervision, and Enforcement 75 Review of sentences 46 Summary 75 Purpose of custody and supervision 76 Adult Sentences (AS) 47 Principles of custody and supervision 77 Key provisions under the YCJA 48 Level of custody 78 Eligibility for an adult sentence 49 Reintegration leave 79 Notice of intention to seek an adult sentence 49 Placement in or transfer to adult facilities 79 Application by the Crown for an AS 50 Release upon recommendation Hearing: adult or youth sentence 51 of provincial director 84 Appeals 56 Conditions for community supervision Key Changes 56 in a custody and supervision order References to Victims 57 under s.42(2)(n) 85 Ontario Victim Services 57 Conditions for conditional supervision General principles 58 for sentences under s.42(2)(o),(q),(r), Objectives of extrajudicial measures 58 for deferred custody and supervision orders Extrajudicial sanctions 59 under s.42(2)(p), and after a review under s.94(19)(b) 86

YCJA Table of Contents v Extending the custodial portion of custody and supervision orders under s.42(2)(n) 90 Extending the custodial portion of orders for custody that have conditional supervision – for s.42(2),(o),(q), & (r) sentences 93 Breach of sentences not involving custody 96 Breach of supervision conditions 96 Breach of custody and community supervision orders under s.42(2)(n) 97 Breach of conditional supervision orders (including deferred custody and supervision orders) under ss.42(2)(o),(q),(r) & (p),94(19)(b) 100

Short Sections: Appeals to Statements Appeals 104 Appeal provisions Conferences 106 Conference overview Mental health provisions 107 Medical and psychological reports, assessments and assessment reports Notice to parents 110 Notification to parents regarding proceedings against young persons Peace bonds 111 Requirements Pre-charge screening and private prosecutions 112 Role of Crown and Attorney General Pre-sentence reports 113 When to use Publication 115 Protection of privacy for young person, young witnesses and victims

YCJA Table of Contents vii YCJA Table of Contents viii

Extending the custodial portion of custody Referral to child welfare 118 and supervision orders under s.42(2)(n) 90 Overview Extending the custodial portion of orders for Right to counsel 119 custody that have conditional supervision – Rights of young person to counsel for s.42(2),(o),(q), & (r) sentences 93 Statements 121 Breach of sentences not involving custody 96 Criteria for admissibility of statements Breach of supervision conditions 96 Breach of custody and community Transitional Provisions 123 supervision orders under s.42(2)(n) 97 The most recent transitional provisions: Breach of conditional supervision orders (including offence occurred but no proceedings deferred custody and supervision orders) started BEFORE October 23, 2012 124 under ss.42(2)(o),(q),(r) & (p),94(19)(b) 100 The original transitional provisions from the JDA and YOA to the YCJA: Short Sections: Appeals to Statements offences committed before April 1, 2003 125 Appeals 104 Appeal provisions Relevant Provincial Legislation 128 Conferences 106 Child and Family Services Act – Temporary Detention Conference overview Overview 128 Mental health provisions 107 Temporary Detention 128 Medical and psychological reports, Custody Review Board 133 assessments and assessment reports Provincial Offences Act Notice to parents 110 Overview 134 Notification to parents regarding proceedings Arrest Without Warrant 135 against young persons Release of Young Person 136 Peace bonds 111 Trial 137 Requirements Exclusion of Public, Publication Bans and Pre-charge screening and private prosecutions 112 Disclosure of Youth Matters 137 Role of Crown and Attorney General Pre-Sentence Reports 139 Pre-sentence reports 113 Sentencing 139 When to use Detention / Custody Facility Placement 140 Publication 115 Appeals 140 Protection of privacy for young person, young witnesses and victims

YCJA Table of Contents vii Young Offenders Act – Reference for level of custody determination 142 Courts of Justice Act 146

Case Law 147

Considerations & Definitions 152

YCJA Table of Contents ix INTRODUCTION

Background The Juvenile Delinquents Act was in force from 1908 until 1984.

The Young Offenders Act (YOA) was in force from 1984 until 2003.

The Youth Criminal Justice Act (YCJA) is the federal legislation that replaced the YOA in April 2003. A Youth Criminal Justice Act Pocket Guide dated 2003 summarized the changes that were brought about when the YCJA was implemented in 2003 and some of the YOA provisions that were kept in the YCJA. This new guide, Ontario Pocket Guide to the Youth Criminal Justice Act 2014 Edition, adds summaries of the key changes made to the YCJA by the Safe Streets and Communities Act S.C. 2012, c.1, (SS & CA) effective October 23, 2012. The key components of the YCJA are presented in eleven sections which correspond to the divider tabs in the Pocket Guide. The guide also includes “Considerations and Definitions” to support best practices.

Introduction Background 1 Introduction General Rule 2 INTRODUCTION

General Rule - Application of the CC Background The YCJA is a procedural statute which creates specific The Juvenile Delinquents Act was in force from 1908 until rules that apply when dealing with YPs. It does not stand 1984. alone and the general rule is that the provisions of the CC apply. Except to the extent that it is inconsistent with the The Young Offenders Act (YOA) was in force from 1984 until YCJA, the provisions of the criminal code apply to offences 2003. alleged to have been committed by a YP, with any modifications the circumstances may require. s.140 The Youth Criminal Justice Act (YCJA) is the federal In particular, Part XXVII of the CC, the rules for Summary legislation that replaced the YOA in April 2003. A Youth Conviction offences, applies to the YCJA with a few Criminal Justice Act Pocket Guide dated 2003 summarized additional provisions and except to the extent that Part XXVII the changes that were brought about when the YCJA was is inconsistent with the YCJA. s.142 implemented in 2003 and some of the YOA provisions that There are several specific provisions set out in the YCJA were kept in the YCJA. This new guide, Ontario Pocket that make specific reference to sections or parts of the CC, Guide to the Youth Criminal Justice Act 2014 Edition, adds including ss.14(2),15(4),20(2),28,50,67(8) & (9),141 & 142. summaries of the key changes made to the YCJA by the Safe Streets and Communities Act S.C. 2012, c.1, (SS & CA) effective October 23, 2012. The key components of the YCJA are presented in eleven sections which correspond to the divider tabs in the Pocket Guide. The guide also includes “Considerations and Definitions” to support best practices.

Introduction Background 1 Declaration of Principle s.3

The principles in s.3 must be used to interpret the entire act. The act must be liberally construed to make sure these principles govern all dealings with YPs. s.3(2) Other principles that apply to specific sections of the YCJA, such as extrajudicial measures, youth sentencing, and custody and supervision are set out in those sections. (see “Principles governing extrajudicial measures,” s.4, p.9, “Youth sentencing principles,” s.38(2), p.15 , and “Principles of custody and supervision,” s.83(2), p.37) The Declaration in s.3(1) contains the following principles a the youth criminal justice system is intended to protect the public by i holding YPs accountable through measures that are in proportion to both how serious the offence is and the level of the YP’s responsibility for the offence ii helping to rehabilitate and reintegrate YPs who have committed offences iii helping prevent crime by referring YPs to programs or agencies in the community that can address the circumstances underlying their offending behaviour b the criminal justice system for YPs must be separate from that of adults and MUST • be based on the principle of a YP’s diminished moral responsibility or culpability in relation to their age and

Introduction Declaration of Principle 3 Introduction Declaration of Principle 4

experience • emphasize the following Declaration of Principle s.3 i rehabilitation and reintegration The principles in s.3 must be used to interpret the entire ii accountability that is fair and in proportion with act. The act must be liberally construed to make sure YPs' greater dependency and reduced level of these principles govern all dealings with YPs. s.3(2) maturity Other principles that apply to specific sections of the YCJA, iii enhanced procedural protections to protect YPs’ such as extrajudicial measures, youth sentencing, and rights, including their privacy, and to make sure custody and supervision are set out in those sections. they are treated fairly (see “Principles governing extrajudicial measures,” s.4, p.9, iv timely intervention that reinforces the link “Youth sentencing principles,” s.38(2), p.15 between offending and consequences , and “Principles of custody and supervision,” s.83(2), p.37) AND The Declaration in s.3(1) contains the following principles v promptness and speed by persons responsible for enforcing the act given a the youth criminal justice system is intended to protect YPs’ perception of time the public by c within the limits of fair and proportionate accountability, i holding YPs accountable through measures that are the measures taken against in proportion to both how serious the offence is and a YP should the level of the YP’s responsibility for the offence i reinforce a YP’s respect for the values of society ii helping to rehabilitate and reintegrate YPs who have committed offences ii encourage the repair of harm done to victims and the community iii helping prevent crime by referring YPs to programs or agencies in the community that iii have meaning for the YP given their needs and level can address the circumstances underlying their of development and, where appropriate, involve the offending behaviour parents, the extended family, the community, and social or other agencies in the YP’s rehabilitation and b the criminal justice system for YPs must be separate reintegration from that of adults and MUST AND • be based on the principle of a YP’s diminished moral iv respect gender, ethnic, cultural, and linguistic responsibility or culpability in relation to their age and differences and respond to the needs of aboriginal YPs and of YPs with special needs Introduction Declaration of Principle 3 AND d proceedings against YPs are required to apply these special considerations i YPs have rights and freedoms which are specially guaranteed, including the right to be heard, and to participate in the process of making decisions that affect them ii victims should be treated with courtesy, compassion, and respect, and should suffer the minimum degree of inconvenience iii victims should be provided with information and given an opportunity to participate and be heard AND iv parents should be informed of measures or proceedings and encouraged to support their children as the YPs address their offending behaviour

Introduction Declaration of Principle 5 Introduction Jurisdiction of youth justice court 6

AND d proceedings against YPs are required to apply these Jurisdiction of the youth justice court special considerations All of the proceedings under the YCJA take place in the i YPs have rights and freedoms which are specially youth justice court. This court has exclusive jurisdiction over guaranteed, including the right to be heard, and to any offence that a person is alleged to commit while they are participate in the process of making decisions that a YP, subject only to the Contraventions Act and the affect them National Defence Act. s.14(1) ii victims should be treated with courtesy, compassion, and respect, and should suffer the minimum degree of inconvenience What constitutes a youth justice court and judge iii victims should be provided with information and given an opportunity to participate and be heard youth justice court s.13 AND any court that a province designates as a youth justice court for the purposes of the YCJA iv parents should be informed of measures or proceedings and encouraged to support their youth justice court judge s.13 children as the YPs address their offending behaviour a person who is appointed or designated as a judge of the youth justice court or a judge sitting in a court created or designated as a youth justice court

If a YP elects to be tried by a judge without a jury, or a judge and jury, the judge and court elected are the superior court of criminal jurisdiction in the province. The court and judge which the YP elects are deemed to be a youth justice court and youth justice court judge. s.13(2),(3)

Introduction Declaration of Principle 5 Admissibility of statements

In order for a YP’s statement to be admitted in evidence it MUST be taken in accordance with s.146 of the YCJA. The rules are comprehensive. When the rules are not followed, the statement may be EXCLUDED FROM EVIDENCE. (see s.146 and “Short sections: ‘Appeals’ to ‘Statements’,” p.121)

After a YP reaches age 18 Extrajudicial measures taken, or judicial proceedings which are started under the YCJA against a YP, may be continued under the YCJA after the person reaches age 18. s.14(4) (see “Transitional Provisions,” p.123) The YCJA applies to persons 18 and over who are alleged to have committed an offence while a YP. s.14(5)

Offences during a period that includes a YP’s 18th birthday s.16 The youth justice court has jurisdiction over an offence which a YP is alleged to have committed during a period that includes the date of their 18th birthday. (see s.16 of the YCJA for details)

Introduction Admissibility of statements 7 Introduction Jurisdiction of justice of the peace 8

Admissibility of statements Jurisdiction of a justice of the peace Justices of the peace may carry out any proceedings that In order for a YP’s statement to be admitted in evidence it may be carried out before a justice under the CC except for MUST be taken in accordance with s.146 of the YCJA. The plea, trial, and adjudication. s.20(1) rules are comprehensive. When the rules are not followed, the statement may be EXCLUDED FROM EVIDENCE. A justice of the peace may decide on judicial interim release. (see s.146 and “Short sections: ‘Appeals’ to ‘Statements’,” After their decision, an application – bail de novo – may be p.121) made to the youth justice court judge to release the YP or to detain them. It may be brought by either the defence or Crown with two clear days written notice to the other side and the court. This application must be heard as an original After a YP reaches age 18 application. s.33(1) A justice of the peace may place a YP on a peace bond Extrajudicial measures taken, or judicial proceedings which (recognizance – fear of injury or damage) under s.810 of the are started under the YCJA against a YP, CC. However, if the YP refuses to enter into a recognizance may be continued under the YCJA after the person reaches then the JP MUST refer this issue to a youth justice court. age 18. s.14(4) s.20(2) (see “Transitional Provisions,” p.123) (see “Short sections: ‘Appeals’ to ‘Statements’: Peace The YCJA applies to persons 18 and over who are alleged Bonds,” p.111) to have committed an offence while a YP. s.14(5)

Introduction Admissibility of statements 7 Extrajudicial Measures (EJM)

What extrajudicial measures are EJM are measures other than court proceedings used to deal with a YP who has committed an offence. Part 1 of the YCJA, Extrajudicial Measures, sets out the particulars for authorized non-court options. These non-court options fall into three basic categories • listed options that police MUST consider s.6 • caution programs for police and Crown that MAY be established by the Attorney General ss.7 & 8 AND • the more-formal program of extrajudicial sanctions which requires a referral. The referral may come from police, Crown, or both depending on the rules of the program s.10

Extrajudicial Measures What extrajudicial measures are 9 Extrajudicial Measures Principles 10 Extrajudicial Measures (EJM) Principles governing extrajudicial measures What extrajudicial measures are s.4 EJM are measures other than court proceedings used to (in addition to the overall principles in s.3) deal with a YP who has committed an offence. EJM Part 1 of the YCJA, Extrajudicial Measures, sets out the a are often the most appropriate and effective way to particulars for authorized non-court options. These non-court address youth crime options fall into three basic categories b allow for effective and timely interventions that focus on s.6 • listed options that police MUST consider correcting a YP’s offending behaviour • caution programs for police and Crown that MAY be c are presumed to be adequate to hold a YP accountable established by the Attorney General ss.7 & 8 if the offence was non-violent and the YP had no AND previous finding of guilt • the more-formal program of extrajudicial sanctions which AND requires a referral. The referral may come from police, d should be used when they are adequate to hold a YP Crown, or both depending on the rules of the program accountable for their offending behaviour. The act allows s.10 the use of EJM when these measures satisfy the principles in this section even if the YP has previously been dealt with by EJM or has been found guilty of an offence

Extrajudicial Measures What extrajudicial measures are 9 Objectives of extrajudicial measures s.5 EJM should be designed to a provide an effective and timely response to offending behaviour outside of judicial proceedings b encourage YPs to acknowledge and repair the harm they caused to the victim and the community c encourage families of YPs to get involved in designing and implementing the measures. This includes extended families where appropriate and members of the community d give victims a chance to take part in making decisions that relate to the measures that are selected, and to receive reparation AND e respect the rights and freedoms of YPs, and be proportionate to the seriousness of the offence

Extrajudicial Measures Objectives 11 Extrajudicial Measures Less formal measures 12

Less-formal measures Take no further action, warnings, cautions, and referrals These are measures that can be used by police and crown attorneys to deal with YPs without using the formal youth justice court system. EJM include extrajudicial sanctions. EJS is the formal program known as Alternative Measures under the YOA. Before laying a charge or referring the matter to EJS, a police officer MUST consider whether one of these actions would satisfy the principles set out in s.4

• take no further action s.6(1) • warn the YP s.6(1) • administer a caution s.6(1),7 (if a program is established under s.7) • refer the YP to a program or agency in the community that may help the YP to not commit offences. The YP must consent to the referral s.6(1) All future charges against the YP for the offence continue to be valid even if a police officer does not consider any of these extrajudicial measures. s.6(2) The Crown may also administer a caution if a program is established. s.8 The youth justice court does not admit evidence of the offence, or any of the following evidence, as a way to prove prior offending behaviour: the YP received a warning, caution, or referral, or no further action was taken. s.9 More-formal measures Extrajudicial Sanctions (EJS) EJS are the most formal type of extrajudicial measures and are part of a program authorized by the Attorney General, s.10(2)(a). In Ontario, formal EJS programs are funded by both the Ministry of Attorney General (MAG) and the Ministry of Children and Youth Services (MCYS): • Youth Justice Committees (YJC) – The YJC program funded by MAG is based on a restorative justice approach. Young persons can be referred either pre- charge by police (via EJM) or post-charge by the Crown (via EJS). Trained community volunteers set meetings with the youth, his/her parent(s) and the victim (if s/he chooses to participate) to negotiate appropriate ways by which the youth can make amends and be held accountable for his/her actions. Each YJC site has a Steering Committee chaired by the local Crown/Assistant Crown. The committee provides oversight to the YJC and includes representation from Police, Probation, Legal Aid Ontario, defence counsel and victim services. • MCYS Extrajudicial sanctions (EJS) programs –Post- charge sanctions are referred by the Crown where a young person cannot adequately be dealt with by police caution or warning (extrajudicial measures).EJS are community-based and can include apology to victim, community service work, restitution, cognitive/behaviour skills, anger management, life skills

Extrajudicial Measures More formal measures 13 Extrajudicial Measures More formal measures 14

and substance abuse counselling/treatment. More-formal measures Pre-conditions for using extrajudicial sanctions Extrajudicial Sanctions (EJS) s.10(2) EJS are the most formal type of extrajudicial measures and An EJS may be used for these reasons only are part of a program authorized by the Attorney General, a it is part of an authorized program of sanctions s.10(2)(a). b the program is considered appropriate to the needs of In Ontario, formal EJS programs are funded by both the the YP and the interests of society Ministry of Attorney General (MAG) and the Ministry of c the YP gives their informed consent to participate Children and Youth Services (MCYS): d the YP knows they have the right to be represented by • Youth Justice Committees (YJC) – The YJC program counsel and has the opportunity to consult counsel funded by MAG is based on a restorative justice before they agree to attend the program approach. Young persons can be referred either pre- e the YP accepts responsibility for the actions that form the charge by police (via EJM) or post-charge by the Crown basis of the alleged offence (via EJS). Trained community volunteers set meetings f the crown attorney believes there is enough evidence to with the youth, his/her parent(s) and the victim (if s/he prosecute the offence chooses to participate) to negotiate appropriate ways by g the law does not bar prosecuting the offence s.10(2) which the youth can make amends and be held accountable for his/her actions. Each YJC site has a Steering Committee chaired by the local Limitations on using extrajudicial sanctions Crown/Assistant Crown. The committee provides EJS may be used only if a YP cannot be adequately dealt oversight to the YJC and includes representation from with by a warning, caution, or referral because of Police, Probation, Legal Aid Ontario, defence counsel and victim services. • the seriousness of the offence • the nature and number of previous offences they MCYS Extrajudicial sanctions (EJS) programs –Post- • committed charge sanctions are referred by the Crown where a young person cannot adequately be dealt with by police • any other aggravating circumstances s.10(1) caution or warning (extrajudicial measures).EJS are Before a police officer can refer a matter to the formal EJS community-based and can include apology to victim, program or lay a charge, they must consider whether it community service work, restitution, would be sufficient based on the principles of EJM set out in cognitive/behaviour skills, anger management, life skills s.4 to use the s.6 options.

Extrajudicial Measures More formal measures 13 When an extrajudicial sanction may NOT be used An EJS may not be used for these reasons s.10(3) • the YP denies that they were involved • the YP asks for the youth justice court to hear the case

Informing parents of a YP who chooses an extrajudicial sanction

The person who administers the program must inform the parents of the YP about the sanction. s.11

Informing a victim about a YP and an extrajudicial sanction s.12

If a victim asks to know, a police officer, Crown Attorney, provincial director, or victim services representative must tell them the identity of the YP and how the offence has been dealt with.

Extrajudicial Measures More-formal measures 15 Extrajudicial Measures Notes to police 16

When an extrajudicial sanction may NOT be used Notes to police, Crown An EJS may not be used for these reasons s.10(3) Notes to police on EJM & EJS generally • the YP denies that they were involved Police MUST consider these measures: take no further • the YP asks for the youth justice court to hear the case action, warnings, cautions, and referrals. s.6 EJS should be used ONLY when an officer determines that Informing parents of a YP who chooses an extrajudicial warnings, cautions, and referrals are not adequate. s.10(1) sanction Nothing in the YCJA prevents using EJM more than once. s.4(d) The person who administers the program must inform the parents of the YP about the sanction. s.11 Police MUST keep records of EJM as per s.115(1.1), however the use of these records is strictly controlled s.119(4) Informing a victim about a YP and an extrajudicial sanction s.12

Note a key change If a victim asks to know, a police officer, Crown Attorney, provincial director, or victim services representative must tell The amendment to s.39(1)(c) now includes, for indictable them the identity of the YP and how the offence has been offences, EJS in the “history that indicates a pattern” as one dealt with. of the preconditions for imposing a custodial sentence. s.39

Extrajudicial Measures More-formal measures 15 Pre-trial procedures

Judicial interim release ss.28 to 33 General rule ss.28 & 29 All provisions in Part XVI of the CC that apply to judicial interim release for adults apply to YPs, except where they are inconsistent with or excluded by the YCJA. ss.28 & 29

Key provisions for judicial interim release YP must first appear before a judge or justice s.32(1) The youth justice court judge or justice MUST a have the information or indictment read to the YP b if the YP is NOT represented by counsel, inform the YP of that right AND c If notified by the Crown of its intention to seek an adult sentence OR where the status (age) of the young person is uncertain – notify the YP than an adult sentence might be imposed.

Requirements for detention

No detention allowed s.29(1) A YP MUST NOT be detained in custody before sentencing as a substitute for appropriate child protection, mental health, or other social measures. s.29(1)

Pre-trial Procedures Judicial interim release 17 Pre-trial Procedures Judicial interim release 18 Pre-trial procedures

Judicial interim release ss.28 to 33 Justification for holding a YP in custody s.29(2) General rule ss.28 & 29 A youth justice court judge or justice may detain a YP in All provisions in Part XVI of the CC that apply to judicial custody ONLY IF interim release for adults apply to YPs, except where they are inconsistent with or excluded by the YCJA. ss.28 & 29 a the YP is charged with i a serious offence Key provisions for judicial interim release OR YP must first appear before a judge or justice s.32(1) ii an offence other than a serious offence where the YP’s history shows a pattern of The youth justice court judge or justice MUST • outstanding charges a have the information or indictment read to the YP OR b if the YP is NOT represented by counsel, inform the YP • findings of guilt of that right b a youth justice court judge or justice is satisfied that on a AND balance of probabilities custody is necessary to c If notified by the Crown of its intention to seek an adult i make sure the YP will appear in court as required sentence OR where the status (age) of the young person ii protect the public, including a victim or witness, is uncertain – notify the YP than an adult sentence might having regard to all of the circumstances be imposed. OR Requirements for detention

No detention allowed s.29(1) A YP MUST NOT be detained in custody before sentencing as a substitute for appropriate child protection, mental health, or other social measures. s.29(1)

Pre-trial Procedures Judicial interim release 17 iii maintain confidence in the administration of justice for this reason

• a YP has been charged with a serious offence AND • detention is not justified under (i) or (ii) BUT • there are exceptional circumstances. The youth court judge or justice must consider the principles in s.3 as well as the four circumstances listed in s.29(2)(iii) in making this assessment AND c the youth justice court judge or justice is satisfied that on the balance of probabilities the conditions of release would NOT i be sufficient to make sure a YP will appear in court as required ii protect the public OR iii maintain confidence in the administration of justice s.29(2)

The onus is on the Crown s.29(3) The onus is on the Crown to meet the requirements for detention. s.29(3)

Pre-trial Procedures Judicial interim release 19 Pre-trial Procedures Judicial interim release 20 iii maintain confidence in the administration of justice Release to a responsible person s.31 for this reason A YP who has been arrested may be placed in the care of a responsible person, instead of being held in custody, if a • a YP has been charged with a serious offence justice or the youth justice court is satisfied that s.31(1) AND a the YP would be detained, but for this subsection • detention is not justified under (i) or (ii) b the person is willing and able to take care of and BUT exercise control over the YP • there are exceptional circumstances. The youth AND court judge or justice must consider the c the YP is willing to be placed in the care of the principles in s.3 as well as the four responsible person circumstances listed in s.29(2)(iii) in making this assessment If a YP would be detained because there is no responsible person, then the youth justice court judge or justice must ask AND whether a responsible person is available and whether the c the youth justice court judge or justice is satisfied that on YP is willing to be placed in that person’s care. s.31(2) the balance of probabilities the conditions of release Before a YP is placed in the care of a responsible person the would NOT YP and the responsible person must both enter into i be sufficient to make sure a YP will appear in court undertakings to a youth justice court judge or justice. as required s.31(3) ii protect the public Breach of an undertaking that places a YP in the care OR of a responsible person may be prosecuted as an indictable iii maintain confidence in the administration of justice or a summary conviction offence. The maximum penalty if s.29(2) prosecuted by indictment is 2 years. s.139

The onus is on the Crown s.29(3) The onus is on the Crown to meet the requirements for detention. s.29(3)

Pre-trial Procedures Judicial interim release 19 Release from detention in custody If a YP is charged with an offence listed in CC s.469 then release can be ordered by a youth justice court judge ONLY, NOT by a justice. s.33(8)YCJA & CC s.522

The YCJA contains provisions that allow for review of orders for judicial interim release that were made by youth justice court judges or justices. s.33

Pre-trial Procedures Judicial interim release 21 Pre-trial Procedures Election 22

Release from detention in custody If a YP is charged with an offence listed in CC s.469 then Election—choosing a mode of trial s.67 release can be ordered by a youth justice court judge ONLY, NOT by a justice. s.33(8)YCJA & CC s.522 A YP must elect how they will be tried in ANY of these circumstances The YCJA contains provisions that allow for review of orders • the Crown has given notice that they intend to seek an for judicial interim release that were made by youth justice AS for an offence for which an adult could receive more court judges or justices. s.33 than 2 years imprisonment when the offence is alleged to have occurred after the YP reached the age of 14 years s.64(1) & (2) & s.67(1)(b) • the YP is charged with having committed 1st or 2nd degree murder when the offence is alleged to have occurred while they were age 12 or 13 s.67(1)(c) • it is unclear whether the person was a YP or an adult at the time of the offence, but they were at least 14 AND they are charged with committing an offence for which an adult would receive an election s.67(1)(d)

The YP may elect 1 of 3 options s.67(2) • trial by a youth justice court judge without a preliminary inquiry • trial by a judge without a jury • trial by a judge and jury

Pre-trial Procedures Judicial interim release 21 Trial before a judge without a jury or a judge and jury If the YP does not elect, then they are deemed to have elected to be tried by a judge and jury. s.67(2) If the YP ELECTS to be tried by a judge without a jury, or elects or is deemed to have elected to be tried by a judge and jury, then there will be a preliminary inquiry ONLY IF the YP or the Crown asks for one. s.67(2) Even if a YP elects otherwise, the Crown may require a trial by a judge and jury. s.67(6) When a YP is tried by either a judge without a jury, or by a judge and jury, the trial judge must be a judge of a superior court of criminal jurisdiction. The superior court judge will be deemed to be a youth justice court judge and the court is deemed to be a youth justice court for the purpose of the proceedings. s.13(2),(3) In addition, the trial will follow the CC provisions (parts XIX and XX) that govern the mode of trial that was elected, with any modifications that the circumstances require AND these exceptions s.67(9) • the privacy provisions of the YCJA apply s.67(9)(a) AND • a YP who is removed from court under CC s.650(2) is entitled to be represented in court by counsel s.67(9)(b)

Pre-trial Procedures Election 23 Youth Sentences Summary 24 Youth Sentences

Summary The YCJA • defines the purpose of youth sentences • provides the principles and factors that must be considered when a youth sentence is imposed • has a number of youth sentence options • sets out conditions that must exist before a custodial sentence is imposed • includes a supervision portion as part of all custodial sentences

These sections apply ONLY when a YP is given a youth sentence. WHEN the court orders an adult sentence, then Part XXIII (sentencing) and Part XXIV (dangerous and long-term offenders) of the CC apply. s.74(1)

(see “Adult Sentences,” p.47)

Youth Sentences Summary 24 Youth Sentences

(see “Adult Sentences,” p.47) Purpose of youth sentence s.38(1) The purpose of youth sentencing is to hold the YP accountable for the offence by imposing just sanctions • that have meaningful consequences for the YP AND • that promote their rehabilitation and reintegration into society • thereby contributing to the long term protection of society

Youth sentencing principles s.38(2) (subject to the overall principles in s.3) a the sentence must not result in a greater punishment than would be appropriate for an adult convicted of the same offence committed in similar circumstances b the sentence must be similar to the sentences imposed in the region, on similar YPs found guilty of the same offence committed in similar circumstances c the sentence must be proportionate to the seriousness of the offence and the YP’s degree of responsibility for it d all available alternatives to custody that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal youth DNA

Youth Sentences Summary 24 Youth Sentences Purpose of youth sentence 25 Youth Sentences Purpose of youth sentence s.38(1) Summary The purpose of youth sentencing is to hold the YP The YCJA accountable for the offence by imposing just sanctions • defines the purpose of youth sentences • that have meaningful consequences for the YP AND • provides the principles and factors that must be considered when a youth sentence is imposed • that promote their rehabilitation and reintegration into society • has a number of youth sentence options • thereby contributing to the long term protection of society • sets out conditions that must exist before a custodial sentence is imposed • includes a supervision portion as part of all custodial sentences Youth sentencing principles s.38(2) (subject to the overall principles in s.3) These sections apply ONLY when a YP is given a youth sentence. a the sentence must not result in a greater punishment than would be appropriate for an adult convicted of the WHEN the court orders an adult sentence, then Part XXIII same offence committed in similar circumstances (sentencing) and Part XXIV (dangerous and long-term offenders) of the CC apply. s.74(1) b the sentence must be similar to the sentences imposed in the region, on similar YPs found guilty of the same (see “Adult Sentences,” p.47) offence committed in similar circumstances c the sentence must be proportionate to the seriousness of the offence and the YP’s degree of responsibility for it d all available alternatives to custody that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal youth DNA

Youth Sentences Summary 24 Youth Sentences Purpose of youth sentence 25 Youth Sentences

(see “Adult Sentences,” p.47) Youth Sentences Other sentencing considerations 26 e subject to (c), the sentence must i be the least restrictive sentence and consistent with the purpose of the youth sentence in s.38(1) ii be the sentence most likely to rehabilitate the YP and reintegrate them into society AND iii promote a sense of responsibility in the YP, and an acknowledgment of the harm done to the victims and the community f subject to (c) the sentence may have the following objectives i to denounce unlawful conduct AND ii to deter the YP from committing offences

Factors the court must consider in determining a youth sentence s.38(3) a the degree the YP has participated in the offence b the harm done to the victims and whether it was intentional or reasonably foreseeable c any reparation the YP has made to the victim or the community d any time the YP has already spent in detention as a result of the offence e previous findings of guilt against the YP AND

Youth Sentences Other sentencing considerations 26 e subject to (c), the sentence must i be the least restrictive sentence and consistent with the purpose of the youth sentence in s.38(1) ii be the sentence most likely to rehabilitate the YP and reintegrate them into society AND iii promote a sense of responsibility in the YP, and an acknowledgment of the harm done to the victims and the community f subject to (c) the sentence may have the following objectives i to denounce unlawful conduct AND ii to deter the YP from committing offences

Restrictions on custody s.39(1) The court must NOT impose a custodial sentence UNLESS at least one of the following conditions is met a the YP has been found guilty of a violent offence b the YP has failed to comply with non-custodial sentences c the YP has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than 2 years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or both OR d in EXCEPTIONAL cases, if the offence is indictable and the aggravating circumstances would make a non- custodial sentence inconsistent with the purpose and principles of youth sentencing set out in s.38 Note: If one of paragraphs 39(1)(a),(b) or (c) applies • the court MUST consider all alternatives to custody that were raised at the sentencing hearing and that are reasonable in the circumstances AND • MUST NOT impose a custodial sentence unless it determines that no reasonable alternative or combination of alternatives would achieve the purpose

Youth Sentences Other sentencing considerations 26 Youth Sentences Restrictions on Custody 27 f any other aggravating and mitigating circumstances e subject to (c), the sentence must relevant to the purpose and principles of youth i be the least restrictive sentence and consistent with sentencing the purpose of the youth sentence in s.38(1) ii be the sentence most likely to rehabilitate the YP and reintegrate them into society Restrictions on custody s.39(1) AND iii promote a sense of responsibility in the YP, and an The court must NOT impose a custodial sentence UNLESS acknowledgment of the harm done to the victims and at least one of the following conditions is met the community a the YP has been found guilty of a violent offence f subject to (c) the sentence may have the following b the YP has failed to comply with non-custodial objectives sentences i to denounce unlawful conduct c the YP has committed an indictable offence for which an AND adult would be liable to imprisonment for a term of more ii to deter the YP from committing offences than 2 years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or both OR Factors the court must consider in d in EXCEPTIONAL cases, if the offence is indictable and determining a youth sentence s.38(3) the aggravating circumstances would make a non- custodial sentence inconsistent with the purpose and a the degree the YP has participated in the offence principles of youth sentencing set out in s.38 b the harm done to the victims and whether it was Note: If one of paragraphs 39(1)(a),(b) or (c) applies intentional or reasonably foreseeable • the court MUST consider all alternatives to custody that c any reparation the YP has made to the victim or the were raised at the sentencing hearing and that are community reasonable in the circumstances d any time the YP has already spent in detention as a AND result of the offence • MUST NOT impose a custodial sentence unless e previous findings of guilt against the YP it determines that no reasonable alternative or AND combination of alternatives would achieve the purpose

Youth Sentences Other sentencing considerations 26 Youth Sentences Restrictions on Custody 27 e subject to (c), the sentence must i be the least restrictive sentence and consistent with the purpose of the youth sentence in s.38(1) ii be the sentence most likely to rehabilitate the YP and reintegrate them into society AND iii promote a sense of responsibility in the YP, and an acknowledgment of the harm done to the victims and the community f subject to (c) the sentence may have the following objectives i to denounce unlawful conduct AND ii to deter the YP from committing offences

and principles of sentencing set out in ss.38 & 39(2)

Other sentencing considerations s.39(3)

In determining whether there is a reasonable alternative to custody the court MUST consider submissions related to a alternatives to custody that are available b the likelihood that the YP will comply with a non- custodial sentence, taking into account their compliance with previous non-custodial sentences AND c alternatives to custody which have been used for YPs who have committed similar offences in similar circumstances s.39(3) It is possible for the court to use the same non-custodial sentence, or any other non-custodial sentence, for a YP who has previously received a non-custodial sentence. s.39(4) Custodial sentences may NOT be used as a substitute for appropriate child protection, mental health, or other social measures. s.39(5) Before imposing a custodial sentence the court must consider a presentence report UNLESS the court is satisfied that it is not necessary and the Crown AND the YP or their lawyer gives their consent. s.39(6) & (7)

Under the YCJA, all custodial sentences have a supervision portion. When setting the length of a custodial sentence, the court MUST be guided by the purpose and principles in s.38

Youth Sentences Other sentencing considerations 28

and principles of sentencing set out in ss.38 & 39(2)

Other sentencing considerations s.39(3)

Under the YCJA, all custodial sentences have a supervision portion. When setting the length of a custodial sentence, the court MUST be guided by the purpose and principles in s.38 and must NOT take into consideration either the fact that the supervision portion of the sentence may not be served in custody or that the sentence may be reviewed. s.39(8) A court that decides to impose a custodial sentence must give reasons why a non-custodial sentence would NOT achieve the purpose of youth sentencing. If a custodial sentence is imposed for a case which is considered EXCEPTIONAL, the court must give reasons why the case is exceptional under s.38(1)(d). s.39(9) (see “Restrictions on custody,” p.27)

Imposing a youth sentence Before imposing a youth sentence, the court must consider recommendations from a conference if one is held, any pre- sentence report that is prepared, representations made by the parties or their lawyer, representations made by the parents of the YP if any, and any other relevant information that is before the court. s.42(1) (see “Conferences,” p.107 &“Pre-sentence reports,” p.114)

Possible youth sentences s.42(2) Section 42(2) requires a court that finds a YP guilty of an offence to impose one of the following sanctions, or any combination that are not inconsistent with each other [the exception is murder s.42(2)(q) or (r)] a a reprimand – similar to a warning by a judge b an absolute discharge

Youth Sentences Other sentencing considerations 28 Youth Sentences Imposing a youth sentence 29 and principles of sentencing set out in and must NOT take into consideration either the fact that the ss.38 & 39(2) supervision portion of the sentence may not be served in custody or that the sentence may be reviewed. s.39(8) A court that decides to impose a custodial sentence must Other sentencing considerations s.39(3) give reasons why a non-custodial sentence would NOT achieve the purpose of youth sentencing. If a custodial In determining whether there is a reasonable alternative to sentence is imposed for a case which is considered custody the court MUST consider submissions related to EXCEPTIONAL, the court must give reasons why the case is exceptional under s.38(1)(d). s.39(9) a alternatives to custody that are available (see “Restrictions on custody,” p.27) b the likelihood that the YP will comply with a non- custodial sentence, taking into account their compliance with previous non-custodial sentences AND Imposing a youth sentence c alternatives to custody which have been used for YPs Before imposing a youth sentence, the court must consider who have committed similar offences in similar recommendations from a conference if one is held, any pre- circumstances s.39(3) sentence report that is prepared, representations made by It is possible for the court to use the same non-custodial the parties or their lawyer, representations made by the sentence, or any other non-custodial sentence, for a YP who parents of the YP if any, and any other relevant information has previously received a non-custodial sentence. s.39(4) that is before the court. s.42(1) (see “Conferences,” p.107 &“Pre-sentence reports,” p.114) Custodial sentences may NOT be used as a substitute for appropriate child protection, mental health, or other social measures. s.39(5) Possible youth sentences s.42(2) Before imposing a custodial sentence the court must Section 42(2) requires a court that finds a YP guilty of an consider a presentence report UNLESS the court is satisfied offence to impose one of the following sanctions, or any that it is not necessary and the Crown AND the YP or their combination that are not inconsistent with each other [the lawyer gives their consent. s.39(6) & (7) exception is murder s.42(2)(q) or (r)] a a reprimand – similar to a warning by a judge Under the YCJA, all custodial sentences have a supervision b an absolute discharge portion. When setting the length of a custodial sentence, the court MUST be guided by the purpose and principles in s.38

Youth Sentences Other sentencing considerations 28 Youth Sentences Imposing a youth sentence 29 and principles of sentencing set out in ss.38 & 39(2)

Other sentencing considerations s.39(3)

Under the YCJA, all custodial sentences have a supervision portion. When setting the length of a custodial sentence, the court MUST be guided by the purpose and principles in s.38 Youth Sentences Imposing a youth sentence 30 c a conditional discharge – this may require supervision by the provincial director • the court may NOT combine the sentence of conditional discharge with (k) "probation," (l) Intensive Support and Supervision Program "ISSP", or (m) "attendance order" to attend an approved non- residential program s.42(11) d a fine to a maximum of $1,000 • the court MUST consider present and future means of the YP to pay s.54(1) • the fine may be discharged through fine options if a program is established s.54(2) • the YP may apply to extend the time to pay s.54(10) e an order to pay compensation for specified losses or specified damages to another person • the court MUST consider present and future means of the YP to pay s.54(1) • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) f an order for the restitution of property to another person • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10)

Youth Sentences Imposing a youth sentence 30 c a conditional discharge – this may require supervision by the provincial director • the court may NOT combine the sentence of conditional discharge with (k) "probation," (l) Intensive Support and Supervision Program "ISSP", or (m) "attendance order" to attend an approved non- residential program s.42(11) d a fine to a maximum of $1,000 • the court MUST consider present and future means of the YP to pay s.54(1) • the fine may be discharged through fine options if a program is established s.54(2) • the YP may apply to extend the time to pay s.54(10) e an order to pay compensation for specified losses or specified damages to another person • the court MUST consider present and future means of the YP to pay s.54(1) • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) f an order for the restitution of property to another person • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) g an order to compensate any innocent purchaser of property when the court has made an order for the restitution of the property to its owner or any other person • the court must consider present and future means of the YP to pay s.54(1) • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) h subject to s.54, an order to compensate any person, in kind or by way of personal services the time limit is 240 hours of service to be completed within 12 months s.54(8) • the person who is offered compensation in this way must give their consent s.54(6) • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the court MUST be satisfied that the YP is a suitable candidate and that the order will NOT interfere with normal hours of work or education s.54(7) • the YP may apply to extend the time s.54(10)

Youth Sentences Imposing a youth sentence 30 Youth Sentences Imposing a youth sentence 31 a conditional discharge – this may require supervision by c g an order to compensate any innocent purchaser of the provincial director property when the court has made an order for the • the court may NOT combine the sentence of restitution of the property to its owner or any other conditional discharge with (k) "probation," (l) person Intensive Support and Supervision Program "ISSP", • the court must consider present and future means of or (m) "attendance order" to attend an approved non- the YP to pay s.54(1) residential program s.42(11) • the court may consider representations made by the d a fine to a maximum of $1,000 recipient s.54(4) • the court MUST consider present and future means • notice of the terms of the order MUST be given to of the YP to pay s.54(1) the recipient s.54(5) • the fine may be discharged through fine options if a • the YP may apply to extend the time to pay program is established s.54(2) s.54(10) • the YP may apply to extend the time to pay h subject to s.54, an order to compensate any person, in s.54(10) kind or by way of personal services e an order to pay compensation for specified losses or the time limit is 240 hours of service to be completed specified damages to another person within 12 months s.54(8) • the court MUST consider present and future means • the person who is offered compensation in this way of the YP to pay s.54(1) must give their consent s.54(6) • the court may consider representations made by the • the court may consider representations made by the recipient s.54(4) recipient s.54(4) • notice of the terms of the order MUST be given to • notice of the terms of the order MUST be given to the recipient s.54(5) the recipient s.54(5) • the YP may apply to extend the time to pay • the court MUST be satisfied that the YP is a suitable s.54(10) candidate and that the order will NOT interfere with f an order for the restitution of property to another person normal hours of work or education s.54(7) • the court may consider representations made by the • the YP may apply to extend the time s.54(10) recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10)

Youth Sentences Imposing a youth sentence 30 Youth Sentences Imposing a youth sentence 31 c a conditional discharge – this may require supervision by the provincial director • the court may NOT combine the sentence of conditional discharge with (k) "probation," (l) Intensive Support and Supervision Program "ISSP", or (m) "attendance order" to attend an approved non- residential program s.42(11) d a fine to a maximum of $1,000 • the court MUST consider present and future means of the YP to pay s.54(1) • the fine may be discharged through fine options if a program is established s.54(2) • the YP may apply to extend the time to pay s.54(10) e an order to pay compensation for specified losses or specified damages to another person • the court MUST consider present and future means of the YP to pay s.54(1) • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) f an order for the restitution of property to another person • the court may consider representations made by the recipient s.54(4) • notice of the terms of the order MUST be given to the recipient s.54(5) • the YP may apply to extend the time to pay s.54(10) Youth Sentences Imposing a youth sentence 32 i subject to s.54, 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 the time limit is 240 hours of service to be completed within 12 months s.54(8) • the court MUST be satisfied that the YP is a suitable candidate and ensure that the order will NOT interfere with normal hours of work or education s.54(7) • the community service MUST be part of a program approved by the provincial director OR the placement must consent s.54(9) • the YP may apply to extend the time to pay s.54(10) j subject to s.51 (mandatory prohibition order), any order for prohibition, seizure, or forfeiture that could be imposed under federal legislation – other than an order under CCs.161 (order of prohibition) (see also “Prohibition Orders,” p.41) k probation the time limit is 2 years • mandatory and optional conditions for the order s.55 • communication of the order s.56 - the order must be read to or by the YP s.56(1)(a) - the order must be explained to the YP and the YP must confirm that they understand it s.56(1)(b) - the court must make sure a copy of the order is given to the YP and to any parent who may attend the sentencing hearing s.56(1)(c)

Youth Sentences Imposing a youth sentence 32 i subject to s.54, 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 the time limit is 240 hours of service to be completed within 12 months s.54(8) • the court MUST be satisfied that the YP is a suitable candidate and ensure that the order will NOT interfere with normal hours of work or education s.54(7) • the community service MUST be part of a program approved by the provincial director OR the placement must consent s.54(9) • the YP may apply to extend the time to pay s.54(10) j subject to s.51 (mandatory prohibition order), any order for prohibition, seizure, or forfeiture that could be imposed under federal legislation – other than an order under CCs.161 (order of prohibition) (see also “Prohibition Orders,” p.41) k probation the time limit is 2 years • mandatory and optional conditions for the order s.55 • communication of the order s.56 - the order must be read to or by the YP s.56(1)(a) - the order must be explained to the YP and the YP must confirm that they understand it s.56(1)(b) - the court must make sure a copy of the order is given to the YP and to any parent who may attend the sentencing hearing s.56(1)(c) - the court may also have a copy of the order given to a parent who does not attend the sentencing hearing if the parent is taking an active interest in the proceedings s.56(2) l an intensive support and supervision program approved by the provincial director Before the order is made, the provincial director must determine that a program to enforce the order is available. s.42(3) This option is intended to provide more support and closer monitoring than a probation order.

Ss.55 & 56 apply as with probation. m attendance order Ԝ Ԝ This option requires that a YP attend a non-residential program approved by the provincial director, at specified times and on specified terms.

Before the order is made, the provincial director MUST determine that a program to enforce the order is available s.42(3) the time limit is 240 hours over a maximum period of 6 months

• the court MUST be satisfied that the YP is a suitable candidate and that the order will not interfere with normal hours of work or education s.54(7)

Youth Sentences Imposing a youth sentence 32 Youth Sentences Imposing a youth sentence 33 i subject to s.54, an order to perform a community service - the court may also have a copy of the order and to report to, and be supervised by, the provincial given to a parent who does not attend the director or a person designated by the court sentencing hearing if the parent is taking an active interest in the proceedings s.56(2) the time limit is 240 hours of service to be completed within 12 months s.54(8) l an intensive support and supervision program approved • the court MUST be satisfied that the YP is a suitable by the provincial director candidate and ensure that the order will NOT Before the order is made, the provincial director must interfere with normal hours of work or education determine that a program to enforce the order is s.54(7) available. s.42(3) • the community service MUST be part of a program This option is intended to provide more support and approved by the provincial director closer monitoring than a probation order. OR the placement must consent s.54(9) • the YP may apply to extend the time to pay Ss.55 & 56 apply as with probation. s.54(10) m attendance order j subject to s.51 (mandatory prohibition order), any order Ԝ Ԝ for prohibition, seizure, or forfeiture that could be This option requires that a YP attend a non-residential imposed under federal legislation – other than an order program approved by the provincial director, at specified under CCs.161 (order of prohibition) times and on specified terms. (see also “Prohibition Orders,” p.41) k probation Before the order is made, the provincial director MUST determine that a program to enforce the order is the time limit is 2 years available s.42(3) • mandatory and optional conditions for the order s.55 the time limit is 240 hours over a maximum period of • communication of the order s.56 6 months - the order must be read to or by the YP s.56(1)(a) - the order must be explained to the YP and the • the court MUST be satisfied that the YP is a suitable candidate and that the order will not interfere with YP must confirm that they understand it normal hours of work or education s.54(7) s.56(1)(b) - the court must make sure a copy of the order is given to the YP and to any parent who may attend the sentencing hearing s.56(1)(c)

Youth Sentences Imposing a youth sentence 33 Youth Sentences Imposing a youth sentence 32 i subject to s.54, 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 the time limit is 240 hours of service to be completed within 12 months s.54(8) • the court MUST be satisfied that the YP is a suitable candidate and ensure that the order will NOT interfere with normal hours of work or education s.54(7) • the community service MUST be part of a program approved by the provincial director OR the placement must consent s.54(9) • the YP may apply to extend the time to pay s.54(10) j subject to s.51 (mandatory prohibition order), any order for prohibition, seizure, or forfeiture that could be imposed under federal legislation – other than an order under CCs.161 (order of prohibition) (see also “Prohibition Orders,” p.41) k probation the time limit is 2 years • mandatory and optional conditions for the order s.55 • communication of the order s.56 - the order must be read to or by the YP s.56(1)(a) - the order must be explained to the YP and the YP must confirm that they understand it s.56(1)(b) - the court must make sure a copy of the order is given to the YP and to any parent who may attend the sentencing hearing s.56(1)(c) Youth Sentences Imposing a youth sentence 34 n custody and community supervision order 2/3 of the sentence is served in custody and 1/3 is served under supervision in the community

the time limit is - 2 years for most offences - 3 years for those offences for which an adult could receive life imprisonment • mandatory conditions for the custody and supervision order are in s.97(1) AND • other conditions can be added by the provincial director under s.97(2) (see “Conditions for community supervision in a custody and supervision order, s.42(2)(n),” p.85)

Youth Sentences Imposing a youth sentence 34 n custody and community supervision order 2/3 of the sentence is served in custody and 1/3 is served under supervision in the community

• the Crown or the provincial director may apply to the court under s.98 to keep the YP in custody and NOT release them on supervision for a period that does not exceed the remainder of the sentence, the last 1/3 s.98 (see “Extending the custodial portion of custody and supervision orders, s.42(2)(n),” p.90) o custody and supervision order where the community supervision portion of the sentence is served under “conditional supervision” for the following offences: attempted murder, manslaughter, and aggravated sexual assault the time limit is 3 years—the court sets the relative times for custody and conditional supervision • the court sets the conditions for conditional supervision under s.105 (see “Conditions for conditional supervision for sentences under s.42(2)(o),(q) & (r),” p.87) • the Crown may apply to the court under s.104 to keep the YP in custody and not release them on conditional supervision (see “Extending the custodial portion of orders for custody that have conditional supervision for s.42(2)(o),(q) & (r) sentences,” p.93) p subject to s.42(5), deferred custody and supervision order–similar to the adult sentencing option of conditional sentence The youth justice court can sentence a YP to a deferred custody and supervision order

ONLY IF s.42(5) a the YP is found guilty of an offence other than one where the YP causes or attempts to cause serious bodily harm in committing the offence AND b it is consistent with the purpose and principles s.38

Youth Sentences Imposing a youth sentence 35 o custody and supervision order where the community supervision portion of the sentence is served under “conditional supervision” for the following offences: attempted murder, manslaughter, and aggravated sexual assault the time limit is 3 years—the court sets the relative times for custody and conditional supervision • the court sets the conditions for conditional supervision under s.105 (see “Conditions for conditional supervision for sentences under s.42(2)(o),(q) & (r),” p.87) • the Crown may apply to the court under s.104 to keep the YP in custody and not release them on conditional supervision (see “Extending the custodial portion of orders for custody that have conditional supervision for s.42(2)(o),(q) & (r) sentences,” p.93) p subject to s.42(5), deferred custody and supervision order–similar to the adult sentencing option of conditional sentence The youth justice court can sentence a YP to a deferred custody and supervision order

Youth Sentences Imposing a youth sentence 35 Youth Sentences Imposing a youth sentence 36

and the restrictions on custody s.39 the time limit is 6 months • it is subject to appropriate conditions s.105 • the order is enforced as if it were a conditional supervision order

Youth Sentences Imposing a youth sentence 36

and the restrictions on custody s.39 the time limit is 6 months • it is subject to appropriate conditions s.105 • the order is enforced as if it were a conditional supervision order

Note: Ss.106 to 109 applies to a breach of a deferred custody and supervision order. s.42(6) q custody and conditional supervision for murder i murder 1st degree the time limit is 10 years—custody up to 6 years followed by conditional supervision in the community ii murder 2nd degree the time limit is 7 years—custody up to 4 years followed by conditional supervision in the community (see “Conditions for conditional supervision for sentences under s.42(2),(o),(q) & (r), deferred custody and supervision orders under s.42(2)(p), and after a review s.94(19)(b),” p.42) r subject to s.42(7), intensive rehabilitative custody and conditional supervision (IRCS) This option may be considered as an alternative to an AS IRCS is available for a YP only if s.42(7) a i the YP has been found guilty of a SVO OR ii the YP has been found guilty of an offence, where the YP caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than 2 years, and the YP had previously been found guilty at least twice of such an offence

b the YP suffers from a mental illness or disorder, a psychological disorder, or an emotional disturbance c a plan of treatment and intensive supervision is developed for the YP and there are reasonable grounds to believe that the plan might reduce the risk of the YP repeating the offence or committing a SVO AND d the provincial director has determined that an IRCS program is available and appropriate • the YP does NOT have to be 14 or older at the time of the offence. The court may impose IRCS on any YP aged 12 to 17 who meets the criteria the time limits for the maximum length of IRCS are:- 2 years - 3 years for offences punishable by life imprisonment for adults - 10 years for first degree murder - 7 years for second degree murder

Youth Sentences Imposing a youth sentence 37

IRCS is available for a YP only if s.42(7) a i the YP has been found guilty of a SVO OR ii the YP has been found guilty of an offence, where the YP caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than 2 years, and the YP had previously been found guilty at least twice of such an offence

Youth Sentences Imposing a youth sentence 37 Youth Sentences Other sentencing provisions 38

The rules for the periods of custody and community supervision apply. (see “Conditions for conditional supervision for sentences under s.42(2)(o),(q) & (r),” p.87) • a YP given an IRCS sentence maintains all the rights regarding consent to treatment, which includes physical or mental health treatment or care s.42(8) s any other reasonable and ancillary conditions that the court considers advisable and in the best interests of the YP and the public

Youth Sentences Other sentencing provisions 38

Other sentencing provisions Maximum youth sentences • 2 years • 3 years for offences punishable by life imprisonment for adults st • 10 years for 1 degree murder nd • 7 years for 2 degree murder Note: Maximum youth sentence must be comprised of pre- trial custody, custody and supervision order(s) and probation. See: Case Law Section R. v. D.S. 2008 ONCA 740 p. Any single sentence under s.42(2) is generally limited to 2 years, with the EXCEPTIONS set out in s.42(14) j order of prohibition, seizure or forfeiture n custody and supervision order where the offence is one for which the punishment for adults is life imprisonment o custody and supervision order for these offences: attempt to commit murder, manslaughter, and aggravated sexual assault q 1st degree murder and 2nd degree murder AND r IRCS Coming into force of youth sentence s.42(12) A youth sentence comes into force on the date on which it is imposed or on any later date that the court specifies.

Consecutive sentences s.42(13)(a) & (b) Subject to ss.42(15) & (16), the court can give a consecutive custodial sentence if a YP is sentenced under paragraphs 42(2)(n),(o),(q) or (r) a while they are already under sentence OR b if the YP is being sentenced for more than one offence under any one of those paragraphs These sentences are subject to the limitations set out in s.42(2)(15) & (16).

Youth Sentences Other sentencing provisions 38 Youth Sentences Other sentencing provisions 39 The rules for the periods of custody and community o custody and supervision order for these offences: supervision apply. (see “Conditions for conditional attempt to commit murder, manslaughter, and supervision for sentences under s.42(2)(o),(q) & (r),” aggravated sexual assault p.87) q 1st degree murder and 2nd degree murder • a YP given an IRCS sentence maintains all the rights regarding consent to treatment, which includes AND physical or mental health treatment or care s.42(8) r IRCS s any other reasonable and ancillary conditions that the Coming into force of youth sentence s.42(12) court considers advisable and in the best interests of the YP and the public A youth sentence comes into force on the date on which it is imposed or on any later date that the court specifies.

Other sentencing provisions Consecutive sentences s.42(13)(a) & (b) Subject to ss.42(15) & (16), the court can give a consecutive Maximum youth sentences custodial sentence if a YP is sentenced under paragraphs • 2 years 42(2)(n),(o),(q) or (r) • 3 years for offences punishable by life imprisonment for a while they are already under sentence adults st OR • 10 years for 1 degree murder nd b if the YP is being sentenced for more than one offence • 7 years for 2 degree murder under any one of those paragraphs Note: Maximum youth sentence must be comprised of pre- These sentences are subject to the limitations set out in trial custody, custody and supervision order(s) and s.42(2)(15) & (16). probation. See: Case Law Section R. v. D.S. 2008 ONCA 740 p. Any single sentence under s.42(2) is generally limited to 2 years, with the EXCEPTIONS set out in s.42(14) j order of prohibition, seizure or forfeiture n custody and supervision order where the offence is one for which the punishment for adults is life imprisonment

Youth Sentences Other sentencing provisions 38 Youth Sentences Other sentencing provisions 39 The rules for the periods of custody and community supervision apply. (see “Conditions for conditional supervision for sentences under s.42(2)(o),(q) & (r),” p.87) • a YP given an IRCS sentence maintains all the rights regarding consent to treatment, which includes physical or mental health treatment or care s.42(8) s any other reasonable and ancillary conditions that the court considers advisable and in the best interests of the YP and the public

Where CC Part XXIII sentencing applies to youth sentencing Generally, the sentencing provisions for adults set out in the CC do not apply to youth sentencing. s.50 EXCEPTIONS • sentencing principle for aboriginal offenders CC s.718.2(e) • provision for admitting victim impact statements CC ss.722,722.1,722.2 • continuation in force of appearance notice, promise to appear, summons, undertaking, or recognizance in certain situations CC s.730(2) • provisions dealing with pardons, remission of sentence, and the royal prerogative of mercy CC s.748,748.1,749

Victim fine surcharge The YCJA allows the lieutenant governor of the province to order that a percentage of a fine imposed under s.42(2)(d) be used to help victims of offences. s.53(1) If no percentage is set by the lieutenant governor, the court may order a victim fine surcharge of up to 15% of the fine imposed. s.53(2)

Youth Sentences Other sentencing provisions 40

Mandatory prohibition order When a YP is found guilty of an offence referred to in CC 109(1)(a)to(d) the youth justice court MUST, in addition to any sentence imposed under s.42 of the YCJA, make an order that prohibits the YP from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. s.51(1) The minimum duration of a mandatory order is 2 years after the YP completes the custody portion of the sentence or, if no custody, 2 years after a finding of guilt. s.51(2)

Discretionary prohibition order There are also discretionary prohibition orders, which the youth justice court MUST consider for offences referred to in paragraphs CC 110(1)(a)or(b). s.51(3) The maximum duration of a discretionary order is 2 years after the YP completes the custody portion of the sentence or, if no custody, 2 years after a finding of guilt. s.51(4)

Youth Sentences Other sentencing provisions 40 Youth Sentences Prohibition orders for offences 41

Where CC Part XXIII sentencing applies to youth sentencing Prohibition orders for offences Generally, the sentencing provisions for adults set out in the Referred to in CC ss.109(1)(a)to(d)&110(1)(a)or(b) CC do not apply to youth sentencing. s.50 ss.42(2)(j) & 51

EXCEPTIONS Mandatory prohibition order • sentencing principle for aboriginal offenders When a YP is found guilty of an offence referred to in CC CC s.718.2(e) 109(1)(a)to(d) the youth justice court MUST, in addition to any sentence imposed under s.42 of the YCJA, make an • provision for admitting victim impact statements order that prohibits the YP from possessing any firearm, CC ss.722,722.1,722.2 cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive • continuation in force of appearance notice, promise to substance. s.51(1) appear, summons, undertaking, or recognizance in certain situations CC s.730(2) The minimum duration of a mandatory order is 2 years after the YP completes the custody portion of the sentence • provisions dealing with pardons, remission of sentence, or, if no custody, 2 years after a finding of guilt. s.51(2) and the royal prerogative of mercy CC s.748,748.1,749 Discretionary prohibition order There are also discretionary prohibition orders, which the Victim fine surcharge youth justice court MUST consider for offences referred to in The YCJA allows the lieutenant governor of the province to paragraphs CC 110(1)(a)or(b). s.51(3) order that a percentage of a fine imposed under s.42(2)(d) The maximum duration of a discretionary order is be used to help victims of offences. s.53(1) 2 years after the YP completes the custody portion of the If no percentage is set by the lieutenant governor, the court sentence or, if no custody, 2 years after a finding of guilt. may order a victim fine surcharge of up to 15% of the fine s.51(4) imposed. s.53(2)

Youth Sentences Other sentencing provisions 40 Youth Sentences Prohibition orders for offences 41

Reasons – Prohibition Order Reasons must be given for • making the prohibition order s.51(5) AND • failing to make a discretionary order or failing to prohibit the YP from possessing everything referred to in s.51(3). s.51(6)

Review – Prohibition Order There is also provision for the youth justice court to review prohibition orders that are made under s.51. s.52

Youth Sentences Prohibition orders for offences 42

Review – Prohibition Order There is also provision for the youth justice court to review prohibition orders that are made under s.51. s.52 Definitions for serious offence, violent offence & serious violent offence NEW definitions (as of October 23, 2012) in s.2(2). Some sentences and procedures will vary depending on which definition the offence falls under. serious offence means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more serious violent offence (SVO) means an offence under one of the following provisions of the Criminal Code: a section 231 or 235 (first degree murder or second degree murder); b section 239 (attempt to commit murder); c section 232, 234 or 236 (manslaughter); or d section 273 (aggravated sexual assault). violent offence means a an offence committed by a YP that includes as an element the causing of bodily harm; b an attempt or a threat to commit an offence referred to in paragraph (a); or c an offence in the commission of which a YP endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Youth Sentences Prohibition orders for offences 42 Youth Sentences feD ini snoit 34

Reasons – Prohibition Order Definitions for serious offence, violent Reasons must be given for offence & serious violent offence • making the prohibition order s.51(5) NEW definitions (as of October 23, 2012) in s.2(2). Some AND sentences and procedures will vary depending on which • failing to make a discretionary order or failing to prohibit definition the offence falls under. the YP from possessing everything referred to in s.51(3). s.51(6) serious offence means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more Review – Prohibition Order serious violent offence (SVO) means an offence There is also provision for the youth justice court to review under one of the following provisions of the Criminal prohibition orders that are made under s.51. s.52 Code: a section 231 or 235 (first degree murder or second degree murder); b section 239 (attempt to commit murder); c section 232, 234 or 236 (manslaughter); or d section 273 (aggravated sexual assault). violent offence means a an offence committed by a YP that includes as an element the causing of bodily harm; b an attempt or a threat to commit an offence referred to in paragraph (a); or c an offence in the commission of which a YP endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Youth Sentences Prohibition orders for offences 42 Youth Sentences feD ini snoit 34

Review – Prohibition Order There is also provision for the youth justice court to review prohibition orders that are made under s.51. s.52 Youth Sentences Orders with probation 44

Orders with probation and intensive support and supervision program Conditions imposed When a probation order, s.42(2)(k), or an intensive support and supervision program order, s.42(2)(l), is imposed there are mandatory conditions that a youth justice court judge MUST impose, s.55(1), and discretionary conditions that a youth court judge MAY impose, s.55(2).

Validity of orders These orders are valid whether or not the YP endorses them or the parent receives a copy. s.56(4)

Youth Sentences Orders with probation 44

Validity of orders These orders are valid whether or not the YP endorses them or the parent receives a copy. s.56(4) Starting probation or intensive support and supervision program The general rule is that an order under s.42(2)(k) or (l) comes into force • on the date on which it is made OR • if the sentence includes continuous custody and supervision, at the end of the period of supervision s.56(5) Starting probation or intensive support and supervision program where custody is delayed It is possible under the YCJA for a youth sentence or any part of it to be delayed in coming into force. This includes a delay in starting the period of custody if one is ordered. s.42(12) If the youth justice court orders a delay in starting the period of custody, then s.56(6) allows a court to divide probation or intensive support and supervision orders so that they are served in two parts – before and after a period of delayed custody and supervision. The first part of the order begins on the day it is made and ends at the start of custody. The remainder takes effect when the supervision portion of the sentence ends.

Youth Sentences Starting probation or ISSP 45

Starting probation or intensive support and supervision program The general rule is that an order under s.42(2)(k) or (l) comes into force • on the date on which it is made OR • if the sentence includes continuous custody and supervision, at the end of the period of supervision s.56(5) Starting probation or intensive support and supervision program where custody is delayed It is possible under the YCJA for a youth sentence or any part of it to be delayed in coming into force. This includes a delay in starting the period of custody if one is ordered. s.42(12) If the youth justice court orders a delay in starting the period of custody, then s.56(6) allows a court to divide probation or intensive support and supervision orders so that they are served in two parts – before and after a period of delayed custody and supervision. The first part of the order begins on the day it is made and ends at the start of custody. The remainder takes effect when the supervision portion of the sentence ends.

Youth Sentences Starting probation or ISSP 45 Youth Sentences Review or sentences 46

Review of sentences Review of non-custodial sentences Non-custodial sentences may be reviewed 6 months after they are imposed, or earlier with permission of the court. s.59(1) There are a number of grounds for review. s.59(2)

Review of custodial sentences For sentences involving custody s.94 • there is an annual review s.94(1) & (2) • there are optional reviews s.94(3) • there are a number of other grounds for review s.94(6)

(see “Review of custodial sentences,” p.82)

Youth Sentences Review or sentences 46

(see “Review of custodial sentences,” p.82) ADULT SENTENCES (AS)

Key Provisions under the YCJA Eligibility for an AS s.64(1) Notice of intention to seek an AS s.64(2) Application by the Crown for an AS s.64(1) Hearing: adult or youth sentence ss.71 & 72 General Rules Test for an AS s.72(1) Onus on the Crown s.72(2) Orders for AS or youth sentence s.72(1) & (1.1) When an AS has been ordered s.72(1) When a youth sentence has been ordered s.72(1.1) Sentences available Custody placement s.76 Publication s.75 Appeals ss.37(4),72(5),75(4) & 76(5) Key section changes made by the SS & CA 2012

Adult Sentences Key provisions 47 Adult Sentences Key provisions under the YCJA 48 ADULT SENTENCES (AS) Key provisions under the YCJA

Key Provisions under the YCJA • all proceedings dealing with YPs are heard in the youth Eligibility for an AS s.64(1) justice court Notice of intention to seek an AS s.64(2) • the Crown may seek an AS for a YP who was 14 or Application by the Crown for an AS s.64(1) older at the time of the offence, and has been found guilty of an offence for which an adult is liable to Hearing: adult or youth sentence ss.71 & 72 imprisonment for more than 2 years s.64(1) General Rules the hearing to determine whether the YP should receive Test for an AS s.72(1) • an AS takes place in the youth justice court after a Onus on the Crown s.72(2) finding of guilt at the beginning of the sentencing hearing Orders for AS or youth sentence s.72(1) & (1.1) s.71 When an AS has been ordered s.72(1) • the youth justice court MUST impose an AS for certain When a youth sentence has been ordered s.72(1.1) offences that meet the test for appropriateness of an AS Sentences available s.72(1) Custody placement s.76 • the onus to prove an AS should be imposed under Publication s.75 s.72(1) is on the Crown s.72(2) Appeals ss.37(4),72(5),75(4) & 76(5) • the YCJA eliminates transfer hearings, a procedure that was used under the YOA Key section changes made by the SS & CA 2012

Adult Sentences Key provisions 47 Eligibility for an adult sentence s.64(1) The Crown may seek an AS for a YP who was 14 or older at the time of the offence, and has been found guilty of an offence for which an adult is liable to imprisonment for more than 2 years. s.64(1)

Notice of intention to seek an adult sentence s.64(2) When notice is to be given The Crown who intends to seek an AS must give notice either before the YP enters a plea or, with leave of the youth justice court, before the trial begins. They must give this notice to both the YP and the youth justice court. s.64(2)

Included offences A notice of intention to seek an AS is also considered notice for any included offence for which • a YP is found guilty AND an adult could be imprisoned for more than 2 years s.64(3) How notices are given An application or notice under s.64 or s.76 is given as follows: oral notice must be given in the presence of the other party; written notice must be served personally. s.81

Adult Sentences Notice of intention for adult sentence 49 Adult Sentences Applications by Crown 50

Eligibility for an adult sentence s.64(1) Application by the Crown for an adult The Crown may seek an AS for a YP who was 14 or older at sentence s.64(1) the time of the offence, and has been found guilty of an offence for which an adult is liable to imprisonment for more Crown may seek an AS s.64(1) than 2 years. s.64(1) The Crown may seek an AS for a YP who was 14 or older at the time of the offence, and has been found guilty of an offence for which an adult is liable to imprisonment for more than 2 years. s.64(1) Notice of intention to seek an adult sentence s.64(2) Crown must consider an AS s.64(1.1) When notice is to be given The Crown must consider making an application for an AS if The Crown who intends to seek an AS must give notice the offence is a SVO and the YP was 14 years or older at either before the YP enters a plea or, with leave of the youth the time of the offence. If the Crown will not make an justice court, before the trial begins. application they must advise the youth justice court before a They must give this notice to both the YP and the youth plea or, with leave, before the trial begins. s.64(1.1) justice court. s.64(2) When to make the application Included offences The Crown makes an application in the youth justice court A notice of intention to seek an AS is also considered notice before evidence is called on sentencing or, if no evidence is for any included offence for which called, before submissions are made on sentencing. • a YP is found guilty s.64(1) AND an adult could be imprisoned for more than 2 years Notice requirements s.64(3) The requirements for notice must also be met. ss.64(2) & 81 How notices are given An application or notice under s.64 or s.76 is given as follows: oral notice must be given in the presence of the other party; written notice must be served personally. s.81

Adult Sentences Notice of intention for adult sentence 49 Included offences s.69(2) The Crown may also seek an AS for a YP who was 14 or older at the time of the offence, and has been found guilty of an included offence for which an adult is liable to imprisonment for more than 2 years. s.69(2) A notice of intention to seek an AS for an offence is also considered notice for any included offence for which an adult could be imprisoned for more than 2 years. s.69(2)

Hearing: adult or youth sentence ss.71 & 72 General rules Purpose The purpose of a hearing under s.71 is to determine whether the court will impose an AS or a youth sentence under s.72(1) or 72(1.1). Opportunity to be heard The youth justice court will make sure that the YP, the Crown, and the YP’s parent have an opportunity to be heard at the hearing to determine whether to impose an AS or a youth sentence. s.71 Onus on the Crown The onus is on the Crown to satisfy the youth justice court that the requirements of s.72(1) are met. s.72(2) Pre-sentence Report The court MUST consider a pre-sentence report in making an order under s.72(1) or (1.1). s.72(3)

Adult Sentences Hearing: adult or youth sentence 51 Adult Sentences Hearing: adult or youth sentence 52

Included offences s.69(2) Reasons for decision The Crown may also seek an AS for a YP who was 14 or older at the time of the offence, and has been found guilty of The court MUST state the reasons for the decision it an included offence for which an adult is liable to reaches. s.72(4) imprisonment for more than 2 years. s.69(2) The test for an AS s.72(1) A notice of intention to seek an AS for an offence is also The youth justice court MUST order an AS to be imposed if it considered notice for any included offence for which an adult is satisfied that could be imprisoned for more than the presumption of diminished moral blameworthiness or 2 years. s.69(2) • culpability of the YP is rebutted AND • a youth sentence imposed in accordance with the ss.71 & 72 Hearing: adult or youth sentence purpose and principles set out in subparagraph General rules 3(1)(b)(ii) & s.38 would not be sufficient to hold the YP accountable for their offending behaviour. Purpose The purpose of a hearing under s.71 is to determine whether the court will impose an AS or a youth sentence under Onus on the Crown s.72(2) s.72(1) or 72(1.1). The onus is on the Crown to satisfy the youth justice court Opportunity to be heard that the requirements of s.72(1) have been met. s.72(2) The youth justice court will make sure that the YP, the Crown, and the YP’s parent have an opportunity to be heard Orders for an AS or youth sentence ss.71 & 72 at the hearing to determine whether to impose an AS or a youth sentence. s.71 If the requirements set out in s.72(1) are satisfied an AS must be imposed. s.72(1) Onus on the Crown The onus is on the Crown to satisfy the youth justice court If the requirements in s.72(1) are NOT satisfied then the that the requirements of s.72(1) are met. s.72(2) court must impose a youth sentence. s.72(1.1) Pre-sentence Report The court MUST consider a pre-sentence report in making an order under s.72(1) or (1.1). s.72(3)

Adult Sentences Hearing: adult or youth sentence 51 When a youth sentence has been ordered under s.72(1.1) When the court orders a youth sentence then all of the provisions of the YCJA apply including Part 4 Sentencing and the specific sentences set out in s.42(2).

When an AS has been ordered under s.72(1) Sentences available

WHEN the court orders an AS, then Part XXIII (sentencing) and Part XXIV (dangerous and long-term offenders) of the CC apply. s.74(1) The finding of guilt becomes a conviction as soon as either the appeal is completed or the appeal period ends. s.74(2)

Custody placement s.76 Order for placement Subject to s.76(2) & (9),79 & 80, when a YP is sentenced to an AS the youth justice court may order any part of the sentence be served in • a youth custody facility separate from any adult detained in custody • a provincial correctional facility for adults • a penitentiary, if the sentence is for 2 years or more s.76(1) YPs under 18 held in youth facility No YP who is under the age of 18 is to serve any portion of their sentence in a provincial correctional facility for adults or a penitentiary. s.76(2)

Adult Sentences Hearing: adult or youth sentence 53 Adult Sentences Hearing: adult or youth sentence 54

When a youth sentence has been ordered under s.72(1.1) Opportunity to be heard When the court orders a youth sentence then all of the provisions of the YCJA apply including Part 4 Sentencing Before making an order under s.76(1) the youth justice court and the specific sentences set out in s.42(2). MUST give the YP, a parent, the Crown, the provincial director, and representatives of the provincial and federal When an AS has been ordered under s.72(1) correctional systems an opportunity to be heard. s.76(3) Sentences available Appeal or review of placement decision WHEN the court orders an AS, then Part XXIII (sentencing) and Part XXIV (dangerous and long-term offenders) of the The decision to place a YP in a custody facility under s.76(1) CC apply. s.74(1) may be appealed as part of a sentence. ss.37(4) & 76(5) The finding of guilt becomes a conviction as soon as either The decision on placement may also be reviewed after the the appeal is completed or the appeal period ends. s.74(2) appeal period expires if the court is satisfied that there has been a material change in circumstances. Placement Custody placement s.76 options after the review are the same as before the initial Order for placement placement. ss.76(6) & (7) Subject to s.76(2) & (9),79 & 80, when a YP is sentenced to an AS the youth justice court may order any part of the Presumption at age 20 sentence be served in There is a presumption that a YP will be moved to an adult • a youth custody facility separate from any adult detained facility after the age of 20, unless the youth justice court that in custody makes the order under s.76(1), or reviews the placement • a provincial correctional facility for adults order under s.76(6), is satisfied that remaining in a youth • a penitentiary, if the sentence is for 2 years or more custody facility would be in the best interests of the YP and s.76(1) would not jeopardize the safety of others. s.76(9) YPs under 18 held in youth facility No YP who is under the age of 18 is to serve any portion of their sentence in a provincial correctional facility for adults or Publication ban is the general rule Publication ss.75 & 110 a penitentiary. s.76(2)

The general rule is that no person may publish the name of a YP or any other information related to the YP if it would identify the YP as a YP dealt with under this act. s.110(1)

Adult Sentences Hearing: adult or youth sentence 53 Exceptions to the general rule of publication ban s.110 • the YP has received an AS s.110(2)(a) • the YP has received a youth sentence for a violent offence and the youth justice court has lifted the publication ban because the court - has considered the purpose and principles set out in ss.3 & 38 - believes the YP poses a significant risk of committing another violent offence AND - believes that lifting the ban is necessary to protect the public against that risk ss.75(2) & 110(2)(b) OR • the information is published to administer justice and NOT for the purpose of making it known to the community s.110(2)(c) Appeal of the order to lift a publication ban The decision to lift the publication ban under s.75(2) may be appealed as part of the sentence. ss.37(4) & 75(4) (for more information on publication, see “Publication,” p.115)

Adult Sentences Hearing: adult or youth sentence 55 Adult Sentences aeppA l s 65

Exceptions to the general rule of publication ban s.110 • the YP has received an AS s.110(2)(a) Appeals ss.37(4),72(5),75(4) & 76(5) • the YP has received a youth sentence for a violent offence and the youth justice court has lifted the Appeals heard as part of the sentence publication ban because the court The order for an AS under s.72(1) or a youth sentence - has considered the purpose and principles set out in under s.72(1.1) MUST be appealed as part of the sentence. ss.3 & 38 ss.37(4)&72(5) - believes the YP poses a significant risk of committing The decision to lift the publication ban under s.75(2) may be another violent offence appealed as part of the sentence. ss.37(4) &75(4) AND The decision to place a YP in a custody facility under s.76(1) - believes that lifting the ban is necessary to protect may be appealed as part of the sentence. ss.37(4) & 76(5) the public against that risk ss.75(2) & 110(2)(b) (for more information on appeals see “Appeals,” p.104) OR • the information is published to administer justice and NOT for the purpose of making it known to the community s.110(2)(c) Key changes to the provisions for adult Appeal of the order to lift a publication ban sentencing by the SS & CA 2012 The decision to lift the publication ban under s.75(2) may be appealed as part of the sentence. ss.37(4) & 75(4) • The SS&CA 2012 REPEALED the following sections of (for more information on publication, see “Publication,” the YCJA: ss.61,62,63,64(4),64(5),65,66,68,69(1) & 70 p.115) • The SS&CA 2012 REPLACED the following sections of the YCJA: ss.64(1),64(2),67(1),67(3),69(2),71,72(1),72(2),72(3),72 (5),73,75,76(2) & 81 • The SS&CA 2012 ADDED the following new sections of the YCJA: ss.64(1.1),64(1.2) & 72(1.1)

Adult Sentences Hearing: adult or youth sentence 55 REFERENCES TO VICTIMS

Ontario Victim Services Victims are mentioned in several provisions of the act. The Preamble notes that Canadian society should have a youth criminal justice system that takes into account the interests of victims. The Ministry of the Attorney General`s Ontario Victim Services provides direct services to vulnerable victims of crime across Ontario and also funds community organizations to deliver support services to victims, including victims of crimes committed by YPs. To find out about the available services, please contact the Victim Support Line, toll-free 1-888-579-2888, or go to the Victim Services Directory at http://services.findhelp.ca/ovss/ The Ministry of Community Safety and Correctional Services operates the Victim Notification System (VNS.) At this time, victims of crimes committed by young persons are not permitted any information from the VNS nor can they register for these services. Victims are able to register for “call block” on a case-by-case basis which ensures that the dialing of certain telephone numbers by inmates using the Offender Telephone Management System is not permitted.

Reference to Victims Ontario Victim Services 57 Reference to Victims General principles 58

REFERENCES TO VICTIMS General principles Ontario Victim Services Measures taken against a YP should encourage them to repair the harm they have done to victims and communities. Victims are mentioned in several provisions of the act. The s.3(1)(c)(ii) Preamble notes that Canadian society should have a youth criminal justice system that takes into account the interests Special considerations apply to proceedings against YPs. In of victims. particular The Ministry of the Attorney General`s Ontario Victim • victims should be treated with courtesy, compassion, Services provides direct services to vulnerable victims of and respect for their dignity and privacy, and should crime across Ontario and also funds community suffer the minimum degree of inconvenience from being organizations to deliver support services to victims, including involved with the youth criminal justice system victims of crimes committed by YPs. s.3(1)(d)(ii) To find out about the available services, please contact the • victims should be provided with information about the Victim Support Line, toll-free 1-888-579-2888, or go to the proceedings, and given a chance to participate and be Victim Services Directory at http://services.findhelp.ca/ovss/ heard s.3(1)(d)(iii) The Ministry of Community Safety and Correctional Services operates the Victim Notification System (VNS.) At this time, victims of crimes committed by young persons are not permitted any information from the VNS nor can they Objectives of extrajudicial measures s.5(b) & (d) register for these services. EJM should be designed to Victims are able to register for “call block” on a case-by-case basis which ensures that the dialing of certain telephone • encourage YPs to acknowledge and repair the harm they caused to the victim and the community s.5(b) numbers by inmates using the Offender Telephone Management System is not permitted. • give victims a chance to take part in making decisions that relate to the measures that are selected, and to receive reparation s.5(d)

Reference to Victims Ontario Victim Services 57 Extrajudicial sanctions s.12 Victims who ask are entitled to have information about the identity of the YP and how the offence was dealt with when EJS were used.

Principles of youth sentencing s.38(2)(e)(iii) Subject to the limit of proportionality, the sentence must promote a sense of responsibility in the YP and an acknowledgement of the harm done to victims and the community.

Factors to consider in youth sentencing In determining a youth sentence the court MUST take into account • the harm done to victims and whether it was intentional or reasonably foreseeable s.38(3)(b) • any reparation the YP has made to the victim or the community s.38(3)(c)

Reference to Victims Factors to consider in youth sentencing 59 Reference to Victims Victim fine surcharge 60

Extrajudicial sanctions s.12 Victim fine surcharge ss.53 & 54 Victims who ask are entitled to have information about the When a YP is given a fine, the YCJA allows for the lieutenant identity of the YP and how the offence was dealt with when governor of the province to order a percentage of it to go to EJS were used. help victims of offences. s.53(1) If no percentage is set by the lieutenant governor, the court may order a victim fine surcharge of up to 15% of fine Principles of youth sentencing s.38(2)(e)(iii) imposed. s.53(2) Subject to the limit of proportionality, the sentence must promote a sense of responsibility in the YP and an acknowledgement of the harm done to victims and the Publication s.111 community. (see “Rules governing young witnesses and victims” p.69) the identity of child or young victims and witnesses may be published ONLY as the act provides (see “Rules governing Factors to consider in youth sentencing young witnesses and victims,” p.116) s.111 In determining a youth sentence the court MUST take into account • the harm done to victims and whether it was intentional Additional provisions relating to victims or reasonably foreseeable s.38(3)(b) • victims should be interviewed for a pre-sentence report if • any reparation the YP has made to the victim or the applicable and reasonably possible community s.38(3)(c) s.40(2)(b) • provisions for victim impact statements in CC ss.722,722.1 & 722.2 apply to youth sentence proceedings s.50

Reference to Victims Factors to consider in youth sentencing 59 • except to the extent that they are inconsistent with or excluded by the YCJA - s.16 (defence of mental disorder) AND - Part XX.1 (mental disorder) of the CC applies with any modifications that the circumstances require for proceedings under the YCJA in relation to offences alleged to have been committed by young persons This also includes provisions for notifying a victim and dealing with victim impact statements in CC ss.672.5(5.1),(14) to (16) and apply to Review Board proceedings (mental disorder) s.141 • victims who ask must have access to court records and may have access to police records under the YCJA s.119(1)(d) if the time periods for access have not expired (see below). (see “Victims’ access to records” p. 72) • a youth justice court has jurisdiction to make orders against a YP under the following sections of the CC s.14(2) - 810 (recognizance – fear of injury or damage) - 810.01 (recognizance – fear of criminal organization offence) - 810.2 (recognizance – fear of serious personal offence)

Reference to Victims Additional provisions 61 Records & Sharing Information Summary 62

RECORDS AND SHARING OF INFORMATION ss.110 to129

Summary The act specifically sets out what records may be kept, who may have access to records or receive the information contained in them, and the time periods during which access is allowed. S.114 to 120

General rule Information about a YP may NOT be disclosed if it would identify them as someone who has been dealt with under the act. For that reason, only those people who are authorized under the YCJA may have access to records or receive the information in them. s.118(1). Those authorizations are found in the YCJA from s.117 to 129

The privacy provisions of the YCJA should be viewed in context of rehabilitative focus of the Act. This includes protecting youth from stigma of having a criminal record that could hinder rehabilitation. YCJA principles related to information sharing: • Right to Confidentiality - young people have a legal right to confidentiality and to protection from illegal and unwarranted disclosures of confidential information.

Records & Sharing Information Summary 62

RECORDS AND SHARING OF INFORMATION ss.110 to129

• Need to Know - information should be released to third parties based on a “need to know” principle, ensuring that the third party is aware of the limitations and the penalty for violating confidentiality.

• Case on Case Basis - each case should be considered on an individual basis and also in the context of the specific legislation that applies.

A person who is entitled to access a record is entitled to the information in the record and a copy of any part of the record. s.122 The purpose of the request and the type of information requested may limit disclosure. (see “Publication,” p.115)

Records & Sharing Information Summary 62 Records & Sharing of Information General rule 63

• Respect for Confidentiality - those mandated to RECORDS AND SHARING OF work with young persons and with information INFORMATION ss.110 to129 relating to young persons, respect a young person’s right to confidentiality.

Summary • Need to Know - information should be released The act specifically sets out what records may be kept, who to third parties based on a “need to know” may have access to records or receive the information principle, ensuring that the third party is aware of the limitations and the penalty for violating contained in them, and the time periods during which access confidentiality. is allowed. S.114 to 120 • Case on Case Basis - each case should be considered on an individual basis and also in the context of the specific legislation that applies. General rule Information about a YP may NOT be disclosed if it would A person who is entitled to access a record is entitled to the identify them as someone who has been dealt with under information in the record and a copy the act. For that reason, only those people who are of any part of the record. s.122 authorized under the YCJA may have access to records or The purpose of the request and the type of information receive the information in them. s.118(1). Those requested may limit disclosure. authorizations are found in the YCJA from s.117 to 129 (see “Publication,” p.115)

Records & Sharing Information Summary 62 Records & Sharing of Information General rule 63 RECORDS AND SHARING OF INFORMATION ss.110 to129

Records, access and time limits

Information regarding who may have access to these court, police and government records, and under what conditions. s.117 to 124 Information regarding time limits after which information about a young person cannot be disclosed s. 119(2) Permission to disclose information in records kept under the Act by the Attorney General, the provincial director, youth workers, peace officers and other persons engaged in providing services to young persons to certain persons in specified circumstances. s.125 to 127

Access for Schools, professionals and those involved in supervision of the young person

Records & Sharing of Information Access and time limits 64

Records, access and time limits

Access for Schools, professionals and those involved in supervision of the young person

The YCJA protects the privacy of a young person’s personal information. However, the sharing of information to a representative of any school board or school or any other educational or training institution, or to any professional or other person engaged in the supervision or care of the young person for certain specified purposes is permitted for the following reasons: - to ensure that educational, rehabilitative and reintegration supports are in place; - to satisfy safety concerns regarding the young person, victim and witnesses, as well as other children, youth and adults, including school staff; and - to ensure compliance with court orders; s. 125(6) - to obtain information for the preparation of reports. s.125 (6)

Records & Sharing of Information Access and time limits Records & Sharing of Information Access for Schools 64 65

the following reasons: Records, access and time limits - to ensure that educational, rehabilitative and reintegration supports are in place; Information regarding who may have access to these court, - to satisfy safety concerns regarding the young person, police and government records, and under what conditions. victim and witnesses, as well as other s.117 to 124 children, youth and adults, including school staff; and - to ensure compliance with court orders; s. 125(6) Information regarding time limits after which information about a young person cannot be disclosed s. 119(2) - to obtain information for the preparation of reports. s.125 (6) Permission to disclose information in records kept under the Act by the Attorney General, the provincial director, youth workers, peace officers and other persons engaged in providing services to young persons to certain persons in specified circumstances. s.125 to 127

Access for Schools, professionals and those involved in supervision of the young person

Records & Sharing of Information Access and time limits 64 Records & Sharing of Information Access for Schools 65

Records, access and time limits

Access for Schools, professionals and those involved in supervision of the young person

Handling information

Description of how information provided under the Act is to be protected, shared, stored and destroyed by persons, such as school representatives, who have received the information. s. 125(7), s. 128 Restriction of further disclosure of records and information by persons, such as school representatives, who have been given access to information, or to whom information has been disclosed, under the Act. s.129

NOTE TO POLICE Here is one key change made to the record keeping provisions by the SS & CA 2012: The police force MUST keep a record of any extrajudicial measures that they use to deal with a YP. s.115(1.1) The limitations on access to extrajudicial measures records still apply. s.119(4)

Adult sentences Sections 118 to 129 do NOT apply to records kept of an offence for which an AS has been imposed • after the time for appeals has run out OR • after appeals have been completed.

Records & Sharing of Information Handling Information 66

Handling information

Adult sentences Sections 118 to 129 do NOT apply to records kept of an offence for which an AS has been imposed • after the time for appeals has run out OR • after appeals have been completed. The record of an AS delivered in youth justice court is treated the same as other adult records. s.117

Time periods Access to records and disclosure of records are subject to time limitations. Until the non-disclosure period begins, persons listed in s.119(1) of the YCJA MUST, on request, be given access to court records under s.114 and MAY be given access to police and government records under ss.115 & 116. Persons having access under s. 119 (1) (a) through s.119(1) (s) include: • Young person to whom the record relates • Young person’s counsel or representative of counsel • Attorney General including Crown Attorney, Assistant Crown Attorney • Victim of offence or alleged offence to which the record relates • Parents, including legal guardian of the young person during the course of any offence proceedings or during term of youth sentence • Any adult assisting the young person under s. 25(7) during offence proceeding or during term of the youth sentence • Any peace officer for law enforcement purposes or purpose relating to the administration of the case, during proceedings or during term of sentence

Records & Sharing of Information Handling Information 66 Records & Sharing of Information Time Periods 67

The record of an AS delivered in youth justice court is Handling information treated the same as other adult records. s.117

Description of how information provided under the Act is to be protected, shared, stored and destroyed by persons, Time periods such as school representatives, who have received the information. s. 125(7), s. 128 Access to records and disclosure of records are subject to time limitations. Restriction of further disclosure of records and information by persons, such as school representatives, who have been Until the non-disclosure period begins, persons listed in given access to information, or to whom information has s.119(1) of the YCJA MUST, on request, be given access to been disclosed, under the Act. s.129 court records under s.114 and MAY be given access to police and government records under ss.115 & 116. Persons having access under s. 119 (1) (a) through s.119(1) NOTE TO POLICE (s) include: Here is one key change made to the record keeping • Young person to whom the record relates provisions by the SS & CA 2012: • Young person’s counsel or representative of counsel • Attorney General including Crown Attorney, Assistant The police force MUST keep a record of any extrajudicial Crown Attorney measures that they use to deal with a YP. s.115(1.1) • Victim of offence or alleged offence to which the record The limitations on access to extrajudicial measures records relates still apply. s.119(4) • Parents, including legal guardian of the young person during the course of any offence proceedings or during term of youth sentence • Any adult assisting the young person under s. 25(7) Adult sentences during offence proceeding or during term of the youth sentence Sections 118 to 129 do NOT apply to records kept of an • Any peace officer for law enforcement purposes or offence for which an AS has been imposed purpose relating to the administration of the case, • after the time for appeals has run out during proceedings or during term of sentence OR • after appeals have been completed.

Records & Sharing of Information Handling Information Records & Sharing of Information Time Periods 67 66

Handling information

• Judge, court or review board for purpose of proceedings against young person • Provincial Director or Director of provincial adult correctional facility or penitentiary person participating in a conference or in the administration of EJM • Ombudsman; Information and Privacy Commissioner for purposes of investigating a complaint Coroner • Child Advocate acting in the course of their duties under their respective Acts • Person acting under the Firearms Act government employee or person under contract with government, for specific purposes see s.119(1)(n); • Person for the purpose of carrying out criminal records check for purposes of employment with or provision of services to municipal, provincial, or federal government • An employee or agent of the federal government for purposes under the federal Statistics Act • Accused who swears affidavit that access is needed for full answer and defence • Persons designated by Order-in-Council and persons who obtain a youth justice court order for access. The time periods for access to the records set out in s.119(2) differ according to the way the YP is dealt with by the court an/d the type of offence. Access to EJM other than EJS can be disclosed ONLY in the limited circumstances set out in s.119(4). Where the person is not listed in s. 119, or where they are but the access periods in s. 119(2) have expired, access to the record can be given ONLY by a court order. s.123 The only exception is a YP to whom a record relates, and their counsel, who may have access to the record at any time. s.124

Records & Sharing of Information Time periods 68

Exceptional cases of disclosure s.125 Various justice professionals are given the discretion to disclose information for specific purposes. The information may be disclosed ONLY during the access period set out in s.119(2). s.125(8)

• a peace officer may disclose information contained in police or court records to any person when it is necessary for investigating an offence s.125(1) • the Crown may, during the course of a proceeding, disclose any information contained in police or court records to a person who is co-accused, with the YP, of the offence for which the record is kept s.125(2)(a) • the Crown may, during the course of a proceeding, disclose information from police or court records to an accused that identifies a witness as a YP who was dealt with under the YCJA s.125(2)(b)

Records & Sharing of Information Time periods 68 Records & Sharing of Information Exceptional cases 69 • Judge, court or review board for purpose of proceedings against young person • Provincial Director or Director of provincial adult Destruction of records and disclosure after the access correctional facility or penitentiary person participating periods have ended are dealt with in ss.128 & 123 in a conference or in the administration of EJM respectively. • Ombudsman; Information and Privacy Commissioner for There are special disclosure provisions and time periods purposes of investigating a complaint Coroner time periods for CPIC records for what are considered more- • Child Advocate acting in the course of their duties under serious offences in the schedule attached to the YCJA. their respective Acts s.120 • Person acting under the Firearms Act government employee or person under contract with Note changes in the description of the offences in government, for specific purposes see s.119(1)(n); s.120(3)(a) & (b). • Person for the purpose of carrying out criminal records check for purposes of employment with or provision of services to municipal, provincial, or federal government s.125 • An employee or agent of the federal government for Exceptional cases of disclosure purposes under the federal Statistics Act Various justice professionals are given the discretion to • Accused who swears affidavit that access is needed for disclose information for specific purposes. The information full answer and defence may be disclosed ONLY during the access period set out in • Persons designated by Order-in-Council and persons s.119(2). s.125(8) who obtain a youth justice court order for access. • a peace officer may disclose information contained in The time periods for access to the records set out in police or court records to any person when it is s.119(2) differ according to the way the YP is dealt with by necessary for investigating an offence s.125(1) the court an/d the type of offence. • the Crown may, during the course of a proceeding, Access to EJM other than EJS can be disclosed ONLY in disclose any information contained in police or court the limited circumstances set out in s.119(4). records to a person who is co-accused, with the YP, of Where the person is not listed in s. 119, or where they are the offence for which the record is kept s.125(2)(a) but the access periods in s. 119(2) have expired, access to • the Crown may, during the course of a proceeding, the record can be given ONLY by a court order. s.123 disclose information from police or court records to an The only exception is a YP to whom a record relates, and accused that identifies a witness as a YP who was dealt their counsel, who may have access to the record at any with under the YCJA s.125(2)(b) time. s.124

Records & Sharing of Information Time periods 68 Records & Sharing of Information Exceptional cases 69

• a peace officer may disclose information contained in police or court records to an insurance company for the purpose of investigating a claim arising out of an offence committed or alleged to have been committed by the YP to whom the record relates s.125(4) • a provincial director or youth worker may disclose information in a record if the disclosure is necessary for gathering information to prepare a report that is required under the YCJA s.125(5) • a provincial director, youth worker, Crown, peace officer, or any other person who is providing services to YPs, may disclose any information contained in court, police, or government records to any professional or other person who is supervising or caring for a YP, including a representative of a school, school board, or any other educational or training institution, if it is necessary a to ensure the YP’s compliance with an order by a youth justice court or the terms of reintegration leave under s.91 b to ensure safety of staff, students, or other persons c to help rehabilitate the YP s.125(6)

The person to whom information is disclosed under subsection 6 MUST a keep the information separate from any other record of the YP to whom the information relates b ensure that no person has access to the information unless authorized by the act. The person may disclose the information to another person if this is necessary for purposes of subsection 6

Records & Sharing of Information Exceptional cases 70

Court authorization s.127 The provincial director, the Crown, or a peace officer may apply to the youth justice court for authorization to disclose specific information about a YP to a specified person or persons. The information may be disclosed ONLY during the access period set out in s.119(2). s.127(4)

The court MUST be satisfied that the following circumstances make it necessary to disclose the information s.127(1) a the YP has been found guilty of an offence involving serious personal injury

b the YP poses a risk of serious harm to people AND c disclosing the information is relevant to avoiding that risk

The YP, their parents, and the Crown MUST be given an opportunity to be heard before the court grants an order, s.127(2). The Crown MAY apply on an ex parte basis when reasonable efforts to locate the YP were made and were not successful. s.127(3)

Records & Sharing of Information Exceptional cases 70 Records & Sharing of Information Exceptional cases 71

• a peace officer may disclose information contained in c destroy their copy of the record when the information is police or court records to an insurance company for the no longer required for the purpose for which it was purpose of investigating a claim arising out of an offence disclosed s.125(7) committed or alleged to have been committed by the YP to whom the record relates s.125(4) Court authorization s.127 • a provincial director or youth worker may disclose information in a record if the disclosure is necessary for The provincial director, the Crown, or a peace officer may gathering information to prepare a report that is required apply to the youth justice court for authorization to disclose under the YCJA s.125(5) specific information about a YP to a specified person or persons. The information may be disclosed ONLY during the • a provincial director, youth worker, Crown, peace officer, or any other person who is providing services to YPs, access period set out in s.119(2). s.127(4) may disclose any information contained in court, police, or government records to any professional or other The court MUST be satisfied that the following person who is supervising or caring for a YP, including a circumstances make it necessary to disclose the information representative of a school, school board, or any other s.127(1) educational or training institution, if it is necessary a the YP has been found guilty of an offence involving a to ensure the YP’s compliance with an order by a serious personal injury youth justice court or the terms of reintegration leave under s.91 b the YP poses a risk of serious harm to people b to ensure safety of staff, students, or other AND persons c disclosing the information is relevant to avoiding that risk c to help rehabilitate the YP s.125(6)

The YP, their parents, and the Crown MUST be given an The person to whom information is disclosed under opportunity to be heard before the court grants an order, subsection 6 MUST s.127(2). The Crown MAY apply on an ex parte basis when a keep the information separate from any other record of reasonable efforts to locate the YP were made and were not the YP to whom the information relates successful. s.127(3) b ensure that no person has access to the information unless authorized by the act. The person may disclose the information to another person if this is necessary for purposes of subsection 6

Records & Sharing of Information Exceptional cases 70 Records & Sharing of Information Exceptional cases 71 • a peace officer may disclose information contained in police or court records to an insurance company for the purpose of investigating a claim arising out of an offence committed or alleged to have been committed by the YP to whom the record relates s.125(4) • a provincial director or youth worker may disclose information in a record if the disclosure is necessary for gathering information to prepare a report that is required under the YCJA s.125(5) • a provincial director, youth worker, Crown, peace officer, or any other person who is providing services to YPs, may disclose any information contained in court, police, or government records to any professional or other person who is supervising or caring for a YP, including a representative of a school, school board, or any other educational or training institution, if it is necessary a to ensure the YP’s compliance with an order by a youth justice court or the terms of reintegration leave under s.91 b to ensure safety of staff, students, or other persons c to help rehabilitate the YP s.125(6)

Restriction on further disclosure s.129 Anyone who is given access to a record, or to whom information is disclosed under the YCJA, may disclose that information to another person ONLY when authorized to do so under the act.

Victims’ access to records s.119(1)(d) During the access period, victims have access to records kept under s.114 (court records) and may have access to records kept under ss.115 (police records) and 116 (government records). (see “References to Victims,” for more information on victims p.18)

Records & Sharing of Information Exceptional cases 72

Effect of termination of a youth sentence s.82 This is subject to the Canada Evidence Act, s.12 (examinations as to previous convictions). If a YP is found guilty of an offence and • the court directs an absolute discharge s.42(2)(b) • the youth sentence has ceased to have effect OR • the disposition under the YOA, other than a mandatory prohibition order, has ceased to have effect s.51 (mandatory prohibition order) or YOA s.20.1 (mandatory prohibition order) then the YP is deemed NOT to have been found guilty or convicted of the offence. EXCEPTIONS under s.82(1) a the YP may plead "autrefois convict" to a subsequent charge related to the offence b the court may consider the finding of guilt in hearing an application under s.64(1) (application for AS) c any court or justice may consider the finding of guilt while hearing an application for judicial interim release or in deciding what sentence to impose for any offence d the National Parole Board or any provincial parole board may consider the finding of guilt while hearing an application for conditional release or for a record suspension under the Criminal Records Act s.82(1) The termination of a youth sentence removes any disqualification under any act of parliament to which the YP is subject for an offence by a finding of guilt. s.82(2) Certain application forms must NOT contain a question that would require the YP to disclose the offence after the termination of the youth sentence. s.82(3) A finding of guilt under the YCJA is NOT considered a previous conviction under any act of parliament where a greater punishment is prescribed because of a previous conviction, except when it is used to determine an AS to be imposed. s.82(4)(b) Note: “a finding of guilt under the YCJA is NOT considered a previous conviction under any act of Parliament…” This cites 82(4)(b). In R.v . Able 2013 385. ONCA the Ontario Court of appeal ruled that a youth finding of guilt IS a prior conviction

Records & Sharing of Information Exceptional cases 72 Records & Sharing of Information Effect of termination 37 Restriction on further disclosure s.129 EXCEPTIONS under s.82(1) Anyone who is given access to a record, or to whom information is disclosed under the YCJA, may disclose that a the YP may plead "autrefois convict" to a subsequent information to another person ONLY when authorized to do charge related to the offence so under the act. b the court may consider the finding of guilt in hearing an application under s.64(1) (application for AS) Victims’ access to records s.119(1)(d) c any court or justice may consider the finding of guilt During the access period, victims have access to records while hearing an application for judicial interim release or kept under s.114 (court records) and may have access to in deciding what sentence to impose for any offence records kept under ss.115 (police records) and 116 (government records). (see “References to Victims,” for d the National Parole Board or any provincial parole board more information on victims p.18) may consider the finding of guilt while hearing an application for conditional release or for a record suspension under the Criminal Records Act s.82(1) The termination of a youth sentence removes any Effect of termination of a youth sentence s.82 disqualification under any act of parliament to which the YP This is subject to the Canada Evidence Act, s.12 is subject for an offence by a finding of guilt. s.82(2) (examinations as to previous convictions). Certain application forms must NOT contain a question that If a YP is found guilty of an offence and would require the YP to disclose the offence after the termination of the youth sentence. s.82(3) • the court directs an absolute discharge s.42(2)(b) A finding of guilt under the YCJA is NOT considered a • the youth sentence has ceased to have effect previous conviction under any act of parliament where a OR greater punishment is prescribed because of a previous • the disposition under the YOA, other than a mandatory conviction, except when it is used to determine an AS to be prohibition order, has ceased to have effect s.51 imposed. s.82(4)(b) (mandatory prohibition order) or YOA s.20.1 (mandatory Note: “a finding of guilt under the YCJA is NOT considered a prohibition order) previous conviction under any act of Parliament…” This cites 82(4)(b). In R.v . Able 2013 385. ONCA the Ontario Court of then the YP is deemed NOT to have been found guilty or appeal ruled that a youth finding of guilt IS a prior conviction convicted of the offence.

Records & Sharing of Information Exceptional cases 72 Records & Sharing of Information Effect of termination 37 Restriction on further disclosure s.129 Anyone who is given access to a record, or to whom information is disclosed under the YCJA, may disclose that information to another person ONLY when authorized to do so under the act.

Records & Sharing of Information Effect of termination 74 for an increased penalty if the youth record remains “active” when the offender commits the second offence as a young adult. (Able’s minimum went from 3-5 years accordingly.) CUSTODY, SUPERVISION, AND ENFORCEMENT ss.83 to 109

Summary Purpose and principles The YCJA sets out the purpose and principles for youth custody and supervision, and the rules under which the youth justice system must operate • the focus of every custody sentence must be on reintegration and on measures aimed at helping the YP to not reoffend • a youth worker MUST be designated to work with each YP as soon as they are sentenced to custody, to develop and implement a reintegration plan • each province is required to have at least two levels of youth custody • all YPs under 18 must serve their youth sentence in youth custody “no young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility or a penitentiary” s.76(2) There are provisions, however, in the legislation governing placement in or transfer to an adult facility for those YPs 18 and over.

Custody Supervision Summary 75 Custody Supervision Purpose of custody & supervision 76 CUSTODY, SUPERVISION, AND ENFORCEMENT ss.83 to 109 Two different sets of procedures Two different sets of procedures have been put in place for Summary each of the following Purpose and principles • setting conditions for supervision in the community (community supervision) and conditional supervision The YCJA sets out the purpose and principles for youth • extending the custodial portion of a youth sentence custody and supervision, and the rules under which the youth justice system must operate • responding to a breach of a condition The first governs community supervision under sentences • the focus of every custody sentence must be on imposed under s.42(2)(n). reintegration and on measures aimed at helping the YP to not reoffend The second governs conditional supervision imposed under s.42(2)(o),(p),(q),(r) & s.94(19)(b). • a youth worker MUST be designated to work with each YP as soon as they are sentenced to custody, to develop and implement a reintegration plan • each province is required to have at least two levels of Purpose of custody and supervision s.83(1) youth custody The purpose of the youth custody and supervision system is • all YPs under 18 must serve their youth sentence in to contribute to the protection of society in two ways youth custody “no young person who is under the age of 18 years is to • by carrying out sentences in a safe, fair, and humane serve any portion of the imprisonment in a provincial manner correctional facility or a penitentiary” s.76(2) AND There are provisions, however, in the legislation governing • by helping the YP to be rehabilitated and reintegrated placement in or transfer to an adult facility for those YPs 18 into society as a law-abiding citizen through effective and over. custody and supervision programs

Custody Supervision Summary 75 Principles of custody and supervision s.83(2) (in addition to the overall principles in s.3) a use the least restrictive measures that are consistent with the protection of the public, people working with the YP, and the YP b ensure that YPs sentenced to custody keep the same rights as other YPs except for those rights which are removed or restricted because of their sentence c help both families of YPs and members of the public to become involved with the YP d make custody and supervision decisions in a fair, forthright, and timely manner to ensure that YPs have access to an effective review procedure AND e ensure that the placement of YPs where they are treated as adults does NOT disadvantage them for eligibility for and conditions of release

Custody Supervision Principles of custody supervision 77 Custody Supervision Level of custody 78

Principles of custody and supervision s.83(2) Level of custody (in addition to the overall principles in s.3) Each province must have at least 2 levels of youth custody a use the least restrictive measures that are consistent that are distinguished by the degree of restraint. s.85(1) with the protection of the public, people working with the YP, and the YP The YCJA allows either the provincial director or the court to determine the level of custody. ss.85(3),(4) & 88 b ensure that YPs sentenced to custody keep the same rights as other YPs except for those rights which are removed or restricted because of their sentence Note: In Ontario, Order in Council 498/2004 grants the c help both families of YPs and members of the public to power to set the level of custody at sentencing to the youth become involved with the YP court judge. The requirements of the YOA 24.1 - 24.3 must be used in determining the level of custody. See: R. v. L.B. d make custody and supervision decisions in a fair, 2008 ONCA 333 forthright, and timely manner to ensure that YPs have access to an effective review procedure AND The provincial director must designate a youth worker to be assigned to work with a YP as soon as the YP is sentenced e ensure that the placement of YPs where they are treated to custody. During the custodial portion of the sentence, an as adults does NOT disadvantage them for eligibility for assigned youth worker prepares and implements a plan and conditions of release which sets out programs for the YP’s reintegration into the community. s.90(1)

When the YP serves the remainder of their sentence under supervision in the community, the youth worker supervises them, continues to provide support, and helps the YP both respect the conditions of their release and implement their reintegration plan. s.90(2)

In Ontario, probation officers of the Ministry of Children and Youth Services fulfill these functions.

Custody Supervision Principles of custody supervision 77 Reintegration leave s.91 The provincial director may grant reintegration leave to any YP committed to a youth custody facility under a youth sentence. The YCJA also allows reintegration leave to be granted to a YP serving an AS in a youth facility it is available on any terms and conditions that the provincial director considers desirable for a period not exceeding 30 days renewal of the leave is specifically allowed for one or more 30-day periods on reassessment of the case • the provincial director can revoke the leave at any time • if the YP is not complying, or the leave is revoked, the YP can be arrested without warrant and returned to custody Note: There is no provision for youth in detention to receive reintegration leaves.

Placement in or transfer to adult facilities Summary If a YP is 18 or over but under 20 the court can, if certain criteria are met, authorize their transfer to a provincial custodial facility for adults. s.92

Custody Supervision Placement 79 Custody Supervision Placement 80

If a YP turns 20 while in a youth custody facility they MUST Reintegration leave s.91 be transferred to a provincial custodial facility for adults The provincial director may grant reintegration leave to any unless the provincial director orders that they remain in the YP committed to a youth custody facility under a youth youth custody facility. s.93 sentence. The YCJA also allows reintegration leave to be granted to a YP serving an AS in a youth facility If a YP is 20 at the time of sentencing, they must be placed it is available on any terms and conditions that the in a provincial custodial facility for adults. s.89 provincial director considers desirable for a period not exceeding 30 days YPs aged 20 at time of sentencing renewal of the leave is specifically allowed for one or more 30-day periods on reassessment of the case A YP who is aged 20 or older at the time a custodial youth sentence is imposed MUST be committed to a provincial • the provincial director can revoke the leave at correctional facility for adults. s.89(1) any time

• if the YP is not complying, or the leave is revoked, the Once a YP is serving a youth sentence in a provincial adult YP can be arrested without warrant and returned to facility under s.89(1), the provincial director may apply to the custody youth justice court for authorization to direct that the YP be Note: There is no provision for youth in detention to receive moved to a federal penitentiary to serve the remainder of the reintegration leaves. youth sentence.

The following conditions must be met s.89(2) Placement in or transfer to adult facilities there must be 2 years or more remaining in the sentence • the YP, provincial director, and representatives of the Summary provincial and federal correctional systems must have an If a YP is 18 or over but under 20 the court can, if certain opportunity to be heard criteria are met, authorize their transfer to a provincial AND custodial facility for adults. s.92 • the court must be satisfied that transfer to a penitentiary is in either the best interests of the YP or the public interest

Custody Supervision Placement 79 Turning 18 under a custodial sentence s.92(1),(2) After turning 18, the Youth Justice Court, upon application of the provincial director or others, may order a YP to serve the remainder of the youth sentence in a provincial correctional facility for adults, provided that • the YP, provincial director, and representatives of the provincial adult system have an opportunity to be heard AND • the court considers the transfer to be in the best interests of the YP or in the public interest s.92(1) Once the YP is serving a youth sentence in the provincial adult facility, the provincial director may apply to the court for authorization to move the YP to a federal penitentiary. s.92(2)

Where a sentence is served s.92(4) & (5) If a YP is serving an AS with placement in an adult facility under s.76(1)(b) or (c) and a custodial youth sentence at the same time, they MUST serve both sentences in an adult facility. s.92(4) The placement of a YP is at the discretion of the provincial director when the YP is serving a custodial sentence in a youth facility under s.76(1)(a). s.92(5)

Turning 20 under a custodial sentence s.93 When a YP turns 20 while serving a custodial youth sentence in a youth facility, they MUST be transferred to a provincial adult correctional facility UNLESS the provincial

Custody Supervision Placement 81 Custody Supervision Placement 82 Turning 18 under a custodial sentence s.92(1),(2) director orders otherwise. s.93(1) After turning 18, the Youth Justice Court, upon application of the provincial director or others, may order a YP to serve the remainder of the youth sentence in a provincial correctional If the YP has been transferred to a provincial adult facility for adults, provided that correctional facility under s.93(1) the provincial director may apply to the youth justice court to transfer them to a federal • the YP, provincial director, and representatives of the penitentiary. s.93(2) provincial adult system have an opportunity to be heard AND The court may order the transfer to a penitentiary if • the court considers the transfer to be in the best interests of the YP or in the public interest s.92(1) • the court considers it in the best interests of the YP or in the public interest Once the YP is serving a youth sentence in the provincial adult facility, the provincial director may apply to the court for AND authorization to move the YP to a federal penitentiary. if at the time of the application there are 2 years or more s.92(2) remaining on the sentence s.93(2)

Where a sentence is served s.92(4) & (5) Provisions governing YPs serving a youth sentence in an adult facility If a YP is serving an AS with placement in an adult facility under s.76(1)(b) or (c) and a custodial youth sentence at A YP who is serving a youth sentence in an adult facility by the same time, they MUST serve both sentences in an adult order of the court, is subject to the legislation governing facility. s.92(4) other prisoners in those facilities, except as the legislation conflicts with the provisions of Part 6 of the YCJA. These The placement of a YP is at the discretion of the provincial provisions, including access to youth records and disclosure director when the YP is serving a custodial sentence in a of information in youth records, continue to apply to the YP. youth facility under s.76(1)(a). s.92(5) ss.89(3),92(3 ) & 93(3)

Turning 20 under a custodial sentence s.93 Review of custodial sentences s.94 When a YP turns 20 while serving a custodial youth There is a mandatory annual review of custodial sentences sentence in a youth facility, they MUST be transferred to a of more than one year, s.94(1) & (2), and optional reviews provincial adult correctional facility UNLESS the provincial that can be initiated by the provincial director, the YP, the parent of the YP, or the Attorney General. s.94(3) Custody Supervision Placement 81 Five clear days notice of any review is required in accordance with s.94(13) or (14).

Orders deemed to be youth sentences for the purpose of review

These orders are reviewed under s.94. s.95 s.97(2) Conditions for community supervision s.98(3) Continuation of custody s.103(2)(b) Continuation of custody for a serious breach of conditions s.104(1) Continuation of custody s.105(1) Conditions for conditional supervision s.109(2)(b) Continuation of suspension of conditional supervision

There is no review of a sentence under either s.94 or s.96 while the sentence is under appeal. ss.94(7) & 96(4)

Review of level of custody s.88 of the YCJA permits the lieutenant governor of a province to order that the determination of level of custody to be exercised in accordance with S.28.1 YOA. In Ontario, that order was made pursuant to Order-In-Council 498/2004. These provisions must be considered when determining the level of custody to impose on the young person at the time of sentencing.

Custody Supervision Placement 83 Custody Supervision Release upon recommendation 84 Five clear days notice of any review is required in accordance with s.94(13) or (14). Where a young person is placed in secure custody by the youth court s.24.1(3)YOA or transferred to secure custody Orders deemed to be youth sentences for the purpose by the Provincial Director s.24.2(11)YOA the youth court of review shall review the level of custody if an application is made by the young person or the young person's parent. (also see These orders are reviewed under s.94. s.95 “Level of custody,” p.78) s.97(2) Conditions for community supervision Decision of the youth justice court after review s.98(3) Continuation of custody s.94(19) s.103(2)(b) Continuation of custody for a serious breach When a youth justice court reviews a sentence under s.94 of conditions the court may, after giving the parties the opportunity to be s.104(1) Continuation of custody heard s.105(1) Conditions for conditional supervision a confirm the sentence s.109(2)(b) Continuation of suspension of conditional b release the YP on conditional supervision supervision OR c convert an IRCS sentence to a custodial sentence There is no review of a sentence under either s.94 or s.96 while the sentence is under appeal. ss.94(7) & 96(4) Release upon recommendation of provincial director s.96 Review of level of custody The youth justice court may release a YP from custody on s.88 of the YCJA permits the lieutenant governor of a conditional supervision on the recommendation of the province to order that the determination of level of custody provincial director without the need for a hearing. s.96(5) to be exercised in accordance with S.28.1 YOA. In Ontario, There will be a hearing, however, if an application to review that order was made pursuant to Order-In-Council 498/2004. the provincial director’s recommendations is made by the These provisions must be considered when determining the YP, the YP’s parent, or the Attorney General. s.96(3) level of custody to impose on the young person at the time of sentencing. The provincial director may request a review of the court order if the youth justice court does not release the YP. s.96(7) Notice provisions are set out in s.96.

Custody Supervision Placement 83 Where else this procedure can and cannot be used Because Ontario continues to authorize the court to determine the level of custody, this procedure is also available to transfer a YP from secure to open custody under s.29 of the YOA. Unlike the YOA, this procedure CANNOT be used to release a YP on probation.

Conditions for community supervision in a custody and supervision order under s.42(2)(n) s.97 The last 1/3 of a youth sentence of custody and supervision under s.42(2)(n) is served in the community, under supervision. Mandatory conditions included in all s.42(2)(n) sentences. These include the following conditions set out in s.97(1) The YP MUST s.97(1) a keep the peace and be of good behaviour b report to the provincial director and be under the provincial director’s supervision c inform the provincial director immediately if they are arrested or questioned by police d report to the police or any named individual, as instructed by the provincial director e advise the provincial director of their address of residence, and immediately report any changes

Custody Supervision Community supervision 85 Custody Supervision Community supervision 86

Where else this procedure can and cannot be used in the following information Because Ontario continues to authorize the court to i address determine the level of custody, this procedure is also ii occupation, employment, training, education, or available to transfer a YP from secure to open custody under volunteer work s.29 of the YOA. Unlike the YOA, this procedure CANNOT iii family or financial situation be used to release a YP on probation. AND iv circumstances that might affect their ability to comply with the conditions of the sentence Conditions for community supervision in a AND custody and supervision order under s.42(2)(n) s.97 f NOT own, possess, or have control over any weapon, ammunition, explosive, etc. except as authorized by the The last 1/3 of a youth sentence of custody and supervision provincial director for the purposes of participating in a under s.42(2)(n) is served in the community, under program supervision. Mandatory conditions included in all s.42(2)(n) sentences. Additional conditions These include the following conditions set out in s.97(1) The provincial director may set additional conditions under s.97(2) in order to The YP MUST s.97(1) • support and address the needs of the YP a keep the peace and be of good behaviour • promote the YP’s reintegration into the community b report to the provincial director and be under the AND provincial director’s supervision • adequately protect the public c inform the provincial director immediately if they are arrested or questioned by police In doing so, the provincial director MUST take into account d report to the police or any named individual, as • the needs of the YP instructed by the provincial director • the programs which would most effectively reintegrate them into the community e advise the provincial director of their address of residence, and immediately report any changes • the nature of the offence AND • the YP’s ability to comply with the conditions Custody Supervision Community supervision 85 Conditions for conditional supervision for sentences under s.42(2)(o),(q) & (r), for deferred custody and supervision orders under s.42(2)(p), and after a review under s.94(19)(b) s.105 S.105 sets out the process for setting conditions for releasing a YP on conditional supervision at the end of the custodial portion of a youth sentence • for attempted murder, manslaughter, and aggravated sexual assault s.42(2)(o) • for murder s.42(2)(q) • for intensive rehabilitative custody and supervision s.42(2)(r) AND • for the processes of setting conditions for - deferred custody and supervision s.42(2)(p) AND - release after a review of a custodial youth sentence s.94(19)(b)

Unlike sentencing under s.42(2)(n), the court sets the optional conditions for conditional supervision and deferred custody and supervision. Conditions for deferred custody and supervision are set at the time of sentencing.

Custody Supervision Conditional Supervision 78 Custody Supervision Conditional Supervision 88

Conditions for conditional supervision for The process for setting conditional supervision conditions for sentences under s.42(2)(o),(q) & (r), for sentences under s.42(o),(q) & (r) is as follows s.105 deferred custody and supervision orders Step 1 under s.42(2)(p), and after a review under The YP is brought before the youth justice court s.94(19)(b) s.105 one month before the custodial portion of the sentence ends. s.105(1) S.105 sets out the process for setting conditions for Step 2 releasing a YP on conditional supervision at the end of the The court holds a hearing. s.105(1) custodial portion of a youth sentence Step 3 • for attempted murder, manslaughter, and aggravated The court sets the conditions for the YP’s conditional sexual assault s.42(2)(o) supervision. s.105(1) • for murder s.42(2)(q) Step 4 • for intensive rehabilitative custody and supervision Mandatory conditions are set out in s.105(2). s.42(2)(r) Discretionary conditions that the court may impose are AND set out in s.105(3). • for the processes of setting conditions for The court sets temporary conditions if the YP cannot be brought before the court. A hearing is then held as soon - deferred custody and supervision s.42(2)(p) as possible. A report is required to help the court set the AND conditions. s.105(4) - release after a review of a custodial youth sentence s.94(19)(b) Mandatory conditions–conditional supervision s105(2)

Unlike sentencing under s.42(2)(n), the court sets the These include all conditions set out in s.97, and listed under optional conditions for conditional supervision and deferred “Conditions for community supervision in a custody and custody and supervision. supervision order,” pp. 85 & 86, with THESE ADDITIONS the YP must appear before the youth justice court when Conditions for deferred custody and supervision are set at • required by the court to do so s.105(2)(b) the time of sentencing. • the YP must comply with any reasonable instructions that the provincial director considers necessary, concerning a condition of conditional supervision, to prevent a breach of that condition or to protect society s.105(2)(h) Custody Supervision Conditional Supervision 78 Discretionary conditions–conditional supervision s.105(3) The youth justice court may also require a YP to a go directly to their place of residence or to any other specific place, upon release b make reasonable efforts to find and keep suitable employment c attend any appropriate place of learning, training, or recreation the court finds to be available and suitable d live with a parent or other appropriate adult who is willing to provide for the care and maintenance of the YP e live in any place that the provincial director may specify f remain in the territorial jurisdiction of one or more courts named in the order g comply with conditions set out in the order that support and address the YP’s needs and promote their reintegration into the community AND h comply with any other condition set out in the order that the court considers appropriate, including conditions for securing the YP’s good conduct and preventing their re- offending The court of appeal may review the youth justice court’s order under s.105(1) to set conditions for release on conditional supervision, if an application is made by the YP or the provincial director under s.101. s.105(8)

Custody Supervision Conditional Supervision 98 Custody Supervision – Extending custodial portion 90 Discretionary conditions–conditional supervision s.105(3) The youth justice court may also require a YP to Extending the custodial portion of custody a go directly to their place of residence or to any other and supervision orders under s.42(2)(n) s.98 specific place, upon release Who applies b make reasonable efforts to find and keep suitable The Crown or the provincial director may apply to the youth employment justice court for an order that a YP remain in custody for a c attend any appropriate place of learning, training, period not exceeding their entire sentence s.98(1) or recreation the court finds to be available and suitable • this is a procedure used for sentences imposed d live with a parent or other appropriate adult who is willing s.42(2)(n) to provide for the care and maintenance of the YP Time considerations e live in any place that the provincial director may specify f remain in the territorial jurisdiction of one or more courts If this application cannot be heard before the YP is to be named in the order released from custody, the court may order the YP to remain in custody until the application is complete. s.98(2) g comply with conditions set out in the order that support and address the YP’s needs and promote their reintegration into the community Who must be heard AND Both parties and a parent of the YP MUST have an h comply with any other condition set out in the order that opportunity to be heard. s.98(3) the court considers appropriate, including conditions for securing the YP’s good conduct and preventing their re- Test to extend custodial portion of sentence offending s.98(3) The court of appeal may review the youth justice court’s order under s.105(1) to set conditions for release on The court MUST be satisfied that there are reasonable conditional supervision, if an application is made by the YP grounds to believe that or the provincial director under s.101. s.105(8) • the YP is likely to commit a SVO before the expiry of the sentence AND • conditions that would be imposed on the YP would not be adequate to prevent them from committing the Custody Supervision Conditional Supervision offence 98 Factors the court must consider s.98(4) The court must consider any factor relevant to the case of the YP including a evidence of a pattern of persistent, violent behaviour and, in particular i the number of offences committed that caused physical or psychological harm to another person ii difficulties in controlling violent impulses, to the point of endangering the safety of others iii the use of weapons in committing any offence iv explicit threats of violence v brutal behaviour associated with the commission of an offence AND vi a substantial degree of indifference to the reasonably foreseeable consequences to others of the YP’s behaviour b psychiatric or psychological evidence that, as a result of a physical or mental illness or disorder, the YP is likely to commit a SVO before the sentence ends c reliable information that satisfies the youth justice court that the YP is planning to commit a SVO before the end of the sentence d the availability of adequate supervision programs in the community for the protection of the public until the end of the sentence

Custody Supervision – Extending custodial portion 91 Custody Supervision – Extending custodial portion 92

Factors the court must consider e any increased likelihood that the YP will re-offend if they s.98(4) serve the entire sentence in custody without the benefit The court must consider any factor relevant to the case of of supervision in the community the YP including AND a evidence of a pattern of persistent, violent behaviour f evidence of a pattern of committing violent offences and, in particular while serving a portion of a youth sentence in the i the number of offences committed that caused community under supervision physical or psychological harm to another person ii difficulties in controlling violent impulses, to the point Report s.99 of endangering the safety of others The provincial director MUST make sure a report is prepared iii the use of weapons in committing any offence under s.99 for the hearing. The report MUST include any iv explicit threats of violence information the provincial director is aware of that applies to v brutal behaviour associated with the commission of factors in s.98(4) that may help the court. an offence AND Reasons for the court order s.100 vi a substantial degree of indifference to the reasonably The court MUST state the reasons for an order. foreseeable consequences to others of the YP’s It MUST provide to the YP, counsel, parents, Crown, and behaviour provincial director b psychiatric or psychological evidence that, as a result of a a copy of the order a physical or mental illness or disorder, the YP is likely to AND, on request commit a SVO before the sentence ends b a transcript or copy of the reasons for the order c reliable information that satisfies the youth justice court that the YP is planning to commit a SVO before the end Court of appeal may review order under s.98 s.101 of the sentence The court of appeal may review the order by the youth d the availability of adequate supervision programs in the justice court for continued custody under s.98, or the refusal community for the protection of the public until the end of to make such an order. An application starts the review. the sentence After the review the court of appeal may confirm or reverse the decision of the youth justice court. s.101

Custody Supervision – Extending custodial portion 91 Extending the custodial portion of orders for custody that have conditional supervision – for s.42(2),(o),(q) & (r) sentences s.104 Who applies The Crown (not the provincial director) may apply to the youth justice court for an order that the YP serve a longer period or their entire sentence in custody for a youth sentence s.104 • for attempted murder, manslaughter and aggravated sexual assault s.42(2)(o) • for murder s.42(2)(q) • for intensive rehabilitative custody and supervision s.42(2)(r) The hearing is similar to an application s.98 (see “Extending the custodial portion of the custody and supervision orders under s.42(2)(n),” p.90)

Application of ss.99,100 & 101 Ss.99,100 & 101 apply, with any modifications the circumstances may require in respect to an order or the refusal to make an order under this section. s.104(5) Test s.104(1) Is the YP likely to commit an offence causing death or serious harm to another person before the end of the sentence? Time considerations If this application cannot be heard before the YP is to be

Custody Supervision Conditional supervision 93 Custody Supervision – Conditional supervision 94

released from custody, the court may order the YP to remain Extending the custodial portion of orders for in custody until the application is complete. s.104(2) custody that have conditional supervision – s.104 for s.42(2),(o),(q) & (r) sentences Who must be heard Who applies Both parties and a parent of the YP MUST have an The Crown (not the provincial director) may apply to the opportunity to be heard. s.104(1) youth justice court for an order that the YP serve a longer period or their entire sentence in custody for a youth sentence s.104 Factors to consider s.104(3)

• for attempted murder, manslaughter and aggravated sexual assault s.42(2)(o) The court must consider any factor relevant to the case of • for murder s.42(2)(q) the YP including • for intensive rehabilitative custody and supervision a evidence of a pattern of persistent, violent behaviour s.42(2)(r) and, in particular The hearing is similar to an application s.98 i the number of offences committed that caused physical or psychological harm to another person (see “Extending the custodial portion of the custody and supervision orders under s.42(2)(n),” p.90) ii difficulties in controlling violent impulses, to the point of endangering the safety of others Application of ss.99,100 & 101 iii the use of weapons in committing any offence Ss.99,100 & 101 apply, with any modifications the iv explicit threats of violence circumstances may require in respect to an order or the v brutal behaviour associated with the commission of refusal to make an order under this section. s.104(5) an offence Test s.104(1) AND vi a substantial degree of indifference to the reasonably Is the YP likely to commit an offence causing death or foreseeable consequences to others of the YP’s serious harm to another person before the end of the behaviour sentence? Time considerations If this application cannot be heard before the YP is to be

Custody Supervision Conditional supervision 93 b psychiatric or psychological evidence that, as a result of a physical or mental illness or disorder, the YP is likely to commit an offence causing death or serious harm to another person before the sentence ends c reliable information that satisfies the youth justice court that the YP is planning to commit an offence causing death or serious harm to another person before the end of the sentence d the availability of adequate supervision programs in the community for the protection of the public until the end of the sentence

Setting conditions for supervision on denial of application s.104(6) If the court denies the Crown’s application it may, with the consent of the YP, the Crown, and the provincial director, set conditions for conditional supervision under s.105(1).

Court of appeal may review order ss.104(5) & 101 The Court of Appeal may review an order by the youth justice court for continued custody under s.104, or the refusal to make such an order, on application. The court of appeal may confirm or reverse the decision of the youth justice court.

Custody Supervision – Conditional supervision 95 Custody Supervision Breach of sentences 96 b psychiatric or psychological evidence that, as a result of a physical or mental illness or disorder, the YP is likely to commit an offence causing death or serious harm to Breach of sentences not involving custody another person before the sentence ends s.137 c reliable information that satisfies the youth justice court A YP who willfully fails or refuses to comply with ANY of the that the YP is planning to commit an offence causing following sentences, surcharges, or dispositions to which death or serious harm to another person before the end they are subject, is guilty of a summary conviction offence of the sentence • a sentence under ss.42(2)(c) to (m) conditional d the availability of adequate supervision programs in the discharge to attendance order) community for the protection of the public until the end of or (s) (other conditions) the sentence • a victim fine surcharge OR • certain dispositions under the YOA Setting conditions for supervision on denial of application s.104(6) If the court denies the Crown’s application it may, with the Breach of supervision conditions consent of the YP, the Crown, and the provincial director, set ss.42(2)(n),(o),(q),(r),(p) & 94(19)(b) conditions for conditional supervision under s.105(1). Summary Under the YCJA there are two different ways to deal with Court of appeal may review order ss.104(5) & 101 breaches of supervision orders The Court of Appeal may review an order by the youth justice court for continued custody under s.104, or the • breaches of custody and supervision orders under s.42(2)(n) are dealt with in one way, while refusal to make such an order, on application. The court of appeal may confirm or reverse the decision of the youth • breaches of conditional supervision under justice court. ss.42(2)(o),(q),(r),(p) & 94(19)(b) are dealt with in another They have similar procedures but there are some differences, including the test for remanding a YP in custody.

Custody Supervision – Conditional supervision 95 Apprehending a YP for a breach is by a warrant issued by the provincial director when the criteria for issuing a warrant are met.

Breach of custody and community supervision orders under s.42(2)(n) When the provincial director has reasonable grounds to believe that a YP has breached or is about to breach a condition of their supervision made under s.97 they may, in writing s.102(1) a permit the YP to continue to serve the sentence in the community under the same or different conditions OR b order that the YP be remanded to custody until a review is conducted, if satisfied that the breach is serious and increases the risk to public safety S.107 (Apprehension) and s.108 (Review by provincial director) apply, with any modifications the circumstances require, to an order under s.102(1)(b). s.102(2) If s.102(1)(b) applies the provincial director may issue a warrant to apprehend the YP. Until apprehended, the YP is deemed to be NOT serving their sentence. s.107 The provincial director must review the case within 48 hours of the YP being either apprehended or remanded, and either cancel the remand or refer the case to the youth justice court for review. ss.108 & 103

Custody Supervision Breach of custody 97 Custody Supervision Breach of custody 98

Apprehending a YP for a breach is by a warrant issued by Referral by the provincial director under s.108 and the provincial director when the criteria for issuing a warrant review by the youth justice court s.103 are met.

Options for the court for a review Breach of custody and community After giving the YP an opportunity to be heard s.103(1) supervision orders under s.42(2)(n) a if the court is NOT satisfied, on reasonable grounds, that the YP breached or was about to breach a condition, the When the provincial director has reasonable grounds to court MUST order continuation of supervision on the believe that a YP has breached or is about to breach a same or different conditions condition of their supervision made under s.97 they may, in OR writing s.102(1) b if the court is satisfied, on reasonable grounds, that the a permit the YP to continue to serve the sentence in the YP has breached or was about to breach a condition, the community under the same or different conditions court may make an order s.103(2) OR b order that the YP be remanded to custody until a review Factors the court must consider is conducted, if satisfied that the breach is serious and Ss.109(4) to (8) apply, with any modifications that the increases the risk to public safety circumstances require, to a review by the youth justice court S.107 (Apprehension) and s.108 (Review by provincial under s.103. s.103(3) director) apply, with any modifications the circumstances For a YP who breaches the conditions of supervision the require, to an order under s.102(1)(b). s.102(2) court MUST consider s.109(4) If s.102(1)(b) applies the provincial director may issue a • the length of time the YP was subject to the order warrant to apprehend the YP. Until apprehended, the YP is • whether the YP had previously contravened deemed to be NOT serving their sentence. s.107 the order The provincial director must review the case within 48 hours AND of the YP being either apprehended or remanded, and either • the nature of the contravention cancel the remand or refer the case to the youth justice court for review. ss.108 & 103 For the hearing, a report MUST be prepared and reasons given, and on application there MUST be a review of the order by the court of appeal. ss.109(5) to (8) & 101

Custody Supervision Breach of custody 97 Court order on completion of review s103(2) The court may order that a the YP must CONTINUE to serve the sentence in the community. The court may vary the conditions or impose new conditions OR b the YP must REMAIN IN CUSTODY for any period not exceeding the remainder of the sentence, if the court is satisfied that the breach was serious When the youth justice court makes an order under s.103(2) it must state the reasons for the order and make sure that the YP, counsel for the YP, the parents of the YP, and the crown receive a copy of the order and, upon request, a transcript of copy of the reasons for the order. s.109(5)

Review by the court of appeal A review under s.101 (Review of youth justice court order) by the court of appeal applies with any modifications the circumstances may require. s.109(8)

Custody Supervision Breach of custody 99 Custody Supervision Breach of conditional supervision 100 Court order on completion of review s103(2) The court may order that a the YP must CONTINUE to serve the sentence in the Breach of conditional supervision orders community. The court may vary the conditions or impose (including deferred custody and supervision new conditions orders) under OR ss.42(2)(o),(q),(r),(p) & 94(19)(b) ss.106 to 109 b the YP must REMAIN IN CUSTODY for any period not Suspension of conditional supervision exceeding the remainder of the sentence, if the court is satisfied that the breach was serious When the provincial director has reasonable grounds to believe that a YP has breached or is about to breach a When the youth justice court makes an order under s.103(2) condition of a conditional supervision order made under it must state the reasons for the order and make sure that s.105, they may, in writing s.106 the YP, counsel for the YP, the parents of the YP, and the crown receive a copy of the order and, upon request, a a suspend the conditional supervision transcript of copy of the reasons for the order. s.109(5) AND b order the YP to be remanded into custody until a review is conducted Review by the court of appeal

A review under s.101 (Review of youth justice court order) If the conditional supervision of a YP is suspended under by the court of appeal applies with any modifications the s.106, the provincial director may issue a warrant to circumstances may require. s.109(8) apprehend the YP. Until apprehended, the YP is deemed to be NOT serving their sentence. s.107 The provincial director must review the case within 48 hours of the YP being either apprehended or remanded, and either cancel the suspension of the conditional supervision or refer the case to the youth justice court for review. ss.108 & 109

Custody Supervision Breach of custody 99 Referral by the provincial director under s.108 and review by the youth justice court s.109

Options for the court for a review After giving the YP an opportunity to be heard s.109(1) a if the court is NOT satisfied, on reasonable grounds, that the YP breached or was about to breach a condition of the conditional supervision, the court MUST cancel the suspension and reinstate the conditional supervision OR b if the court is satisfied, on reasonable grounds, that the YP has breached or was about to breach a condition of the conditional supervision, review the decision of the provincial director to suspend the conditional supervision and make an order under s.109(2)

Factors the court must consider For breach of supervision conditions the court MUST consider s.109(4) • the length of time the YP was subject to the order • whether the YP had previously contravened the order AND • the nature of the contravention For the purposes of a review under s.109(1) the youth justice court requires the provincial director to have a report prepared and to submit it to the court. s.109(6)

Custody Supervision Breach of conditional supervision 101 Custody Supervision Breach of conditional supervision 102

Court order on completing a review s.109(2) The court MUST order a that the suspension of the conditional supervision be cancelled and the YP MUST continue to serve the sentence in the community. The court may vary the conditions of the conditional supervision or impose new conditions b that the suspension of the conditional supervision continue AND the YP remain in custody for a period not to exceed the remainder of the sentence. This does NOT apply to deferred custody and supervision orders OR c for a deferred custody and supervision order under s.42(2)(p), that the YP serve the remainder of the order as if it were a custody and supervision order under s.42(2)(n) After a decision has been made under s.109(2)(c), the provisions of the YCJA that apply to orders under s.42(2)(n) also apply to the deferred custody and supervision order. s.109(3) When the youth justice court makes an order under s.109(2) it must state the reasons for the order and make sure that the YP, counsel for the YP, the parents of the YP, and the crown receive a copy of the order and, upon request, a transcript of copy of the reasons for the order. s.109(5) Review by the court of appeal A review under s.101 (Review of youth justice court order) by the court of appeal applies with any modifications the circumstances may require. s.109(8)

Custody Supervision Breach of conditional supervision 103 Appeals laeppA snoisivorp 401 APPEALS

Appeal provisions s.37 • summary and indictable appeals are governed by the appropriate CC provisions s.37(1)& (5) • summary conviction and indictable offences can be appealed together in certain instances. The appeal is governed by the indictable appeal provisions s.37(6) • no appeal can be made under s.37(1) from judgments of the court of appeal to the Supreme Court of Canada for a finding of guilt or an order dismissing an information or indictment UNLESS leave to appeal is granted s.37(10)

Contempt of court A finding of guilt under s.15, for contempt of court or a sentence imposed for that finding, may be appealed as if the finding were a conviction or the sentence were a sentence in a prosecution by indictment. s.37(2) CC s.10 applies when appealing a finding against a parent who was in contempt for failing to attend court. s.37(3)

Appeals heard as part of the sentence s.37(4) The following orders may be appealed as part of the sentence, unless the court orders otherwise • adult or youth sentence s.72(1) or (1.1) • lifting the ban on publication s.75(2) • placement when subject to an AS s.76(1)

Appeals laeppA snoisivorp 401 APPEALS

Appeal court review s.101

These court decisions may be reviewed by the appeal court • when a YP is not released on the supervision portion of the sentence under ss.98 & 104 • when a YP is ordered into custody for a breach of conditions of supervision under ss.103 & 109 • to review the conditions in a conditional supervision order under s.105

Appeals laeppA snoisivorp 401 Appeals aeppA l p r vo i s i sno 501

APPEALS If more than one of these is appealed, they must all be part of the same proceeding. s.37(4) Appeal provisions s.37 • summary and indictable appeals are governed by the Appeal court review s.101 appropriate CC provisions s.37(1)& (5) • summary conviction and indictable offences can be These court decisions may be reviewed by the appeal court appealed together in certain instances. The appeal is • when a YP is not released on the supervision portion of governed by the indictable appeal provisions s.37(6) the sentence under ss.98 & 104 • no appeal can be made under s.37(1) from judgments of • when a YP is ordered into custody for a breach of the court of appeal to the Supreme Court of Canada for conditions of supervision under ss.103 & 109 a finding of guilt or an order dismissing an information or indictment • to review the conditions in a conditional supervision UNLESS leave to appeal is granted s.37(10) order under s.105

Appeals laeppA snoisivorp 401 Appeals aeppA l p r vo i s i sno 501 APPEALS

Conference Overview s.19 conference means a group of persons who are convened to give advice as set out in s.19 Conferences can be used to look for advice on appropriate EJM, conditions for interim release, sentences, review of sentences, and reintegration, among other things. s.19(2)

Who may call a conference A conference may be called by a youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor, or a youth worker. s.19(1)

How conferences work If the province establishes rules for conferences, all conferences EXCEPT those called by judges or justices of the peace must be convened and conducted according to those rules. s.19(3) & (4) There is more than one type of conference. A case-planning conference can bring together professionals to discuss services and programs available for the YP in the community. A restorative justice type of conference may also be held if authorized s.19.

Conferences Overview CONFERENCES

Who may call a conference A conference may be called by a youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor, or a youth worker. s.19(1)

Medical and psychological reports, assessments & assessment reports s.34 At any stage of the proceedings, the court may order an assessment of a YP by a qualified person, along with a written report s.34(1) a with the consent of the YP and the Crown b on its own motion or on the application of the YP or the Crown if the youth justice court believes the report is necessary AND i the court has reasonable grounds to believe that the YP is suffering from one of a number of listed conditions ii the YP has a history indicating a pattern of offences OR iii the YP is alleged to have committed a SVO

Mental Health Provisions Medical and psychological Conferences Overview reports 107 CONFERENCES

Conference Overview s.19 MENTAL HEALTH PROVISIONS conference means a group of persons who are convened to give Medical and psychological reports, advice as set out in s.19 assessments & assessment reports Conferences can be used to look for advice on appropriate s.34 EJM, conditions for interim release, sentences, review of At any stage of the proceedings, the court may order an sentences, and reintegration, among other things. s.19(2) assessment of a YP by a qualified person, along with a written report s.34(1) Who may call a conference a with the consent of the YP and the Crown A conference may be called by a youth justice court judge, b on its own motion or on the application of the YP or the the provincial director, a police officer, a justice of the peace, Crown if the youth justice court believes the report is a prosecutor, or a youth worker. s.19(1) necessary AND How conferences work i the court has reasonable grounds to believe that the If the province establishes rules for conferences, all YP is suffering from one of a number of listed conferences EXCEPT those called by judges or justices of conditions the peace must be convened and conducted according to ii the YP has a history indicating a pattern of offences those rules. s.19(3) & (4) OR There is more than one type of conference. A case-planning iii the YP is alleged to have committed a SVO conference can bring together professionals to discuss services and programs available for the YP in the community. A restorative justice type of conference may also be held if authorized s.19.

Conferences Overview

CONFERENCES Mental Health Provisions Medical and psychological reports 107 Conference Overview s.19 conference means a group of persons who are convened to give advice as set out in s.19 Conferences can be used to look for advice on appropriate EJM, conditions for interim release, sentences, review of sentences, and reintegration, among other things. s.19(2)

Who may call a conference A conference may be called by a youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor, or a youth worker. s.19(1)

Limited purposes s.34(2) An assessment report can also ordered for a limited number of designated purposes a considering an application for release from or detention in custody s.33 b deciding whether to impose an AS or a youth sentence s.71 c making or reviewing a youth sentence d considering an application for continuation of custody s.104(1) e setting conditions for conditional supervision s.105(1) f making an order after a review of a breach or alleged breach of conditional supervision s.109(2) g authorizing disclosure of information about a YP s.127(1)

Mental Health Provisions Medical and psychological reports 108

YP may be remanded for the assessment s.34(3) There is a presumption against a custodial remand. s.34(4) Generally, any statement made by a YP for the purpose or during the course of the assessment is NOT admissible in evidence. s.147(1) There are exceptions to this rule. s.147(1) & (2) Who receives a copy of the report When a youth justice court receives a report under s.34(1) • under s.34(7)(a) the court MUST, subject to s.34(9), make sure a copy is given to i the YP ii any parent of the YP who attends any of the proceedings iii the YP’s counsel AND iv the Crown • under s.34(7)(b) the court may give a copy of the report to i a parent who is not in court ii the provincial director or the director of the adult facility where a YP is serving a youth sentence if, in the court’s opinion, withholding it would jeopardize the safety of any person, despite restrictions on access to records in s.119(6)

Who may have access to the report s.119(6) Only certain people may have access to medical and psychological reports listed in s.34. Those persons and positions are referred to in s.119(6).

Mental disorder provisions s.141 The provisions of the CC for mental disorders apply except to the extent they are inconsistent with the YCJA.

Mental Health Provisions Medical and psychological Mental Health Provisions Medical and psychological reports 108 reports 109

Limited purposes s.34(2) Who receives a copy of the report An assessment report can also ordered for a limited number of designated purposes When a youth justice court receives a report under s.34(1) a considering an application for release from or detention • under s.34(7)(a) the court MUST, subject to s.34(9), in custody s.33 make sure a copy is given to b deciding whether to impose an AS or a youth sentence i the YP s.71 ii any parent of the YP who attends any of the proceedings c making or reviewing a youth sentence iii the YP’s counsel d considering an application for continuation of custody AND s.104(1) iv the Crown e setting conditions for conditional supervision s.105(1) • under s.34(7)(b) the court may give a copy f making an order after a review of a breach or alleged of the report to breach of conditional supervision s.109(2) i a parent who is not in court g authorizing disclosure of information about a YP s.127(1) ii the provincial director or the director of the adult facility where a YP is serving a youth sentence if, in the court’s opinion, withholding it would jeopardize YP may be remanded for the assessment s.34(3) the safety of any person, despite restrictions on There is a presumption against a custodial remand. s.34(4) access to records in s.119(6) Generally, any statement made by a YP for the purpose or during the course of the assessment is NOT admissible in Who may have access to the report s.119(6) evidence. s.147(1) Only certain people may have access to medical and There are exceptions to this rule. s.147(1) & (2) psychological reports listed in s.34. Those persons and positions are referred to in s.119(6).

Mental disorder provisions s.141 The provisions of the CC for mental disorders apply except to the extent they are inconsistent with the YCJA.

Mental Health Provisions Medical and psychological reports 108 Mental Health Provisions Medical and psychological reports 109 Limited purposes s.34(2) An assessment report can also ordered for a limited number of designated purposes a considering an application for release from or detention in custody s.33 b deciding whether to impose an AS or a youth sentence s.71 c making or reviewing a youth sentence d considering an application for continuation of custody s.104(1) e setting conditions for conditional supervision s.105(1) f making an order after a review of a breach or alleged breach of conditional supervision s.109(2) g authorizing disclosure of information about a YP s.127(1)

NOTICE TO PARENTS

Notification to parents regarding proceedings against young persons ss.26 & 27 There are detailed provisions for giving notice to parents for various proceedings against YPs. s.26 Notice to parents does NOT need to be given if the YP has reached the age of 20 at the time of their first appearance before the youth justice court for the offence. s.26(12) In certain circumstances a parent may be ordered by the youth justice court to attend court. This may be at any stage of the proceedings. s.27

Notice to Parents Notification to parents 110

NOTICE TO PARENTS

Requirements Jurisdiction The youth justice court has explicit jurisdiction to place a YP on a peace bond under the following CC sections • fear of injury or damage CC s.810 • fear of criminal organization offence CC s.810.01 • fear of serious personal injury offence CC s.810.2 s.14(2 If a YP does not enter a peace bond If the YP fails or refuses to enter into the peace bond the court may impose any of the sanctions set out in s.42 EXCEPT that a custody and supervision order must NOT exceed 30 days. s.14(2) A justice of the peace may place a YP on a peace bond for fear of damage or injury under CC s.810. If the YP fails or refuses to enter into a recognizance the justice of the peace MUST refer the matter to a youth justice court. s.20(2)

Notice to Parents Notification to parents 110 Peace Bonds Requirements 111

PEACE BONDS NOTICE TO PARENTS Requirements Notification to parents regarding Jurisdiction proceedings against young persons The youth justice court has explicit jurisdiction to place a YP ss.26 & 27 on a peace bond under the following CC sections There are detailed provisions for giving notice to parents for • fear of injury or damage CC s.810 various proceedings against YPs. s.26 • fear of criminal organization offence CC s.810.01 Notice to parents does NOT need to be given if the YP has • fear of serious personal injury offence CC s.810.2 reached the age of 20 at the time of their first appearance s.14(2 before the youth justice court for the offence. s.26(12) If a YP does not enter a peace bond In certain circumstances a parent may be ordered by the If the YP fails or refuses to enter into the peace bond the youth justice court to attend court. This may be at any stage court may impose any of the sanctions set out in s.42 of the proceedings. s.27 EXCEPT that a custody and supervision order must NOT exceed 30 days. s.14(2) A justice of the peace may place a YP on a peace bond for fear of damage or injury under CC s.810. If the YP fails or refuses to enter into a recognizance the justice of the peace MUST refer the matter to a youth justice court. s.20(2)

Notice to Parents Notification to parents 110 Peace Bonds Requirements 111

NOTICE TO PARENTS

Pre-charge screening Role of Crown and AG 112 PRE-CHARGE SCREENING AND PRIVATE PROSECUTIONS

When to use s.40 When to use a pre-sentence report A pre-sentence report may be ordered whenever a court considers it advisable. s.40(1)

The court MUST order a pre-sentence report before ordering a custodial sentence s.39(6) UNLESS the court is satisfied that a report is NOT necessary AND the Crown and defence agree to dispense with it s.39(7)

The youth justice court MUST consider a pre-sentence report when deciding whether to impose an adult or youth sentence under s.72(1) or (1.1). s.72(3) The report must include the listed contents to the extent that they are relevant to the purpose and principles of sentencing and the restrictions on custody in ss.38 & 39. The contents of the report set out in s.40(2) are as follows

a the results of an interview with the YP and if reasonably possible the parents of the YP and possibly members of the YP’s extended family b the results of an interview with the victim, if practicable and reasonably possible

Pre-charge screening Role of Crown and AG 112 Pre-sentence Reports When to use 113 PRE-CHARGE SCREENING AND PRE-SENTENCE REPORTS PRIVATE PROSECUTIONS When to use s.40 Role of the Crown and Attorney General When to use a pre-sentence report The Crown may establish a pre-charge screening program A pre-sentence report may be ordered whenever a court that sets out the circumstances in which the Crown’s considers it advisable. s.40(1) consent MUST be obtained before a YP is charged with an offence. s.23(1) The court MUST order a pre-sentence report before ordering Ontario has no pre-charge screening program pursuant to s. a custodial sentence s.39(6) 23(1) UNLESS No prosecutions may be conducted by a prosecutor other the court is satisfied that a report is NOT necessary than the Attorney General without the consent of the AND Attorney General. s.24 the Crown and defence agree to dispense with it s.39(7)

Pre-charge screening Role of Crown and AG 112 Pre-sentence Reports When to use 113 PRE-CHARGE SCREENING AND PRIVATE PROSECUTIONS

Role of the Crown and Attorney General The Crown may establish a pre-charge screening program that sets out the circumstances in which the Crown’s consent MUST be obtained before a YP is charged with an offence. s.23(1) Ontario has no pre-charge screening program pursuant to s. 23(1) No prosecutions may be conducted by a prosecutor other than the Attorney General without the consent of the Attorney General. s.24 Pre-sentence Reports When to use 114 c the recommendations of any conference referred to in s.41 that is convened by the court to get advice on an appropriate sentence d any information that is applicable (see the listed information set out in this paragraph) e information that will help the court to determine, under s.39(2), if there is an alternative to custody available f any information that the provincial director considers relevant, including a recommendation of the provincial director

The time limit on access to records set out in s.119(2) applies for the information specifically referred to in s.40(2)(d)(iii) & (iv).

Using pre-sentence report procedures for other purposes

The procedure for pre-sentence reports is used for various other reports in the YCJA such as • reviews of sentences ss.59(3) & 94(9) • applications to continue custody Applications for continuation of custody ss.98 & 104 & Reports s.99 • setting conditions for conditional supervision ss.105,105(6) & 99(2) to (7) • hearings on breach of conditions of supervision ss.109(7) & 99(2) to (7)

Pre-sentence Reports When to use 114 c the recommendations of any conference referred to in s.41 that is convened by the court to get advice on an appropriate sentence d any information that is applicable (see the listed information set out in this paragraph) e information that will help the court to determine, under s.39(2), if there is an alternative to custody available f any information that the provincial director considers relevant, including a recommendation of the provincial director

The time limit on access to records set out in s.119(2) applies for the information specifically referred to in s.40(2)(d)(iii) & (iv).

Using pre-sentence report procedures for other purposes

Protection of Privacy for YP, young witnesses and victims Rules governing the protection of the YP’s privacy General rule: The YCJA does NOT allow publication of the name or any information that would lead a YP to be identified as having been dealt with under the act. s.110(1) However, s.110(1) does NOT apply • under s.110(2) where publication may be permitted a where a YP has received an adult sentence b where the information relates to a YP who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under s.75(2) c in the course of the administration of justice IF the purpose of publication is something other than to have the information made known in the community • under ss.110(3),(4),(5)&(6) for a YP who has been dealt with under the act 3 the YP may publish or allow publication after they turn 18 as long as they are NOT in custody under the YOA or the YCJA 4 an order can be made allowing information to be published that identifies a YP when the YP is dangerous and at large 5 the order made under (4) is in effect for 5 days

Pre-sentence Reports When to use 114 Publication Protection of young person 115 c the recommendations of any conference referred PUBLICATION to in s.41 that is convened by the court to get advice on an appropriate sentence Protection of Privacy for YP, young d any information that is applicable (see the listed witnesses and victims information set out in this paragraph) Rules governing the protection of the YP’s privacy e information that will help the court to determine, under s.39(2), if there is an alternative to custody available General rule: The YCJA does NOT allow publication of the name or any information that would lead a YP to be f any information that the provincial director considers identified as having been dealt with under the act. s.110(1) relevant, including a recommendation of the provincial director However, s.110(1) does NOT apply • under s.110(2) where publication may be permitted The time limit on access to records set out in s.119(2) a where a YP has received an adult sentence applies for the information specifically referred to in s.40(2)(d)(iii) & (iv). b where the information relates to a YP who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the Using pre-sentence report procedures for other publication ban under s.75(2) purposes c in the course of the administration of justice IF the purpose of publication is something other than to The procedure for pre-sentence reports is used for various have the information made known in the community other reports in the YCJA such as • under ss.110(3),(4),(5)&(6) for a YP who has been • reviews of sentences ss.59(3) & 94(9) dealt with under the act • applications to continue custody 3 the YP may publish or allow publication after they Applications for continuation of custody ss.98 & 104 turn 18 as long as they are NOT in custody under the & Reports s.99 YOA or the YCJA • setting conditions for conditional supervision 4 an order can be made allowing information to be ss.105,105(6) & 99(2) to (7) published that identifies a YP when the YP is dangerous and at large • hearings on breach of conditions of supervision ss.109(7) & 99(2) to (7) 5 the order made under (4) is in effect for 5 days

Pre-sentence Reports When to use 114 Publication Protection of young person 115 c the recommendations of any conference referred to in s.41 that is convened by the court to get advice on an appropriate sentence d any information that is applicable (see the listed information set out in this paragraph) e information that will help the court to determine, under s.39(2), if there is an alternative to custody available f any information that the provincial director considers relevant, including a recommendation of the provincial director

The time limit on access to records set out in s.119(2) applies for the information specifically referred to in s.40(2)(d)(iii) & (iv).

Using pre-sentence report procedures for other purposes

ONLY 6 the court may make an order to permit a YP who applies to publish information that would identify them IF the court is satisfied that publication would NOT be contrary to their best interests or the public interest

Rules governing young witnesses and victims s.111 This provision protects the privacy of someone under the age of 18 who has been a witness or victim in connection with an offence committed or alleged to have been committed by a YP.

Publication Protection of young person 116

General Rule s.111(1) The YCJA does NOT permit publication of the name of a young witness or victim, or any information that would lead someone to be identified as having been a young witness or victim, in connection with an offence committed or alleged to have been committed by a YP. However, there are exceptions s.111(2) a publication is permitted by a young witness or victim after they turn 18, or before that age with the consent of their parents OR b by the parents of a young victim or witness who is deceased s.111(2) Application for leave to publish s.111(3) If a young victim or witness makes an application, the court may make an order to permit them to publish information that would identify them IF the court is satisfied that publication would NOT be contrary to their best interests or the public interest.

Ban on publication no longer applies s.112

Once an application to publish the identity of a young victim, young witness, or YP dealt with under the act has been granted and the information has been published, the general publication ban does not apply. The general publication ban does apply, however, after the end of the 5-day period for a YP who is dangerous and at large. s.110(4) & (5)

Publication Protection of young person 116 Publication Protection of privacy 117

ONLY Application for leave to publish s.111(3) 6 the court may make an order to permit a YP who If a young victim or witness makes an application, the court applies to publish information that would identify may make an order to permit them to publish information them IF the court is satisfied that publication would that would identify them IF the court is satisfied that NOT be contrary to their best interests or the public publication would NOT be contrary to their best interests or interest the public interest.

Rules governing young witnesses and victims s.111 Ban on publication no longer applies s.112

This provision protects the privacy of someone under the age of 18 who has been a witness or victim in connection Once an application to publish the identity of a young victim, with an offence committed or alleged to have been young witness, or YP dealt with under the act has been committed by a YP. granted and the information has been published, the general publication ban does not apply. General Rule s.111(1) The general publication ban does apply, however, after the end of the 5-day period for a YP who is dangerous and at The YCJA does NOT permit publication of the name of a large. s.110(4) & (5) young witness or victim, or any information that would lead someone to be identified as having been a young witness or victim, in connection with an offence committed or alleged to have been committed by a YP. However, there are exceptions s.111(2) a publication is permitted by a young witness or victim after they turn 18, or before that age with the consent of their parents OR b by the parents of a young victim or witness who is deceased s.111(2)

Publication Protection of young person 116 Publication Protection of privacy 117

General Rule s.111(1) The YCJA does NOT permit publication of the name of a young witness or victim, or any information that would lead someone to be identified as having been a young witness or victim, in connection with an offence committed or alleged to have been committed by a YP. However, there are exceptions s.111(2) a publication is permitted by a young witness or victim after they turn 18, or before that age with the consent of their parents OR b by the parents of a young victim or witness who is deceased s.111(2) Referral to Child Welfare Overview 118 REFERRAL TO CHILD WELFARE

Overview s.35 A court may refer a YP to a child welfare agency at any stage of the proceedings, for assessment to determine whether the YP is in need of child welfare services. This referral can be made in addition to any order the court may make.

Referral to Child Welfare Overview 118 REFERRAL TO CHILD WELFARE

Rights of young person to counsel s.25 1 A YP has the right to retain and instruct counsel without delay and to exercise that right personally • at any stage of the proceedings against the YP AND • before and during any consideration of whether to use an EJS instead of starting or continuing judicial proceedings under the YCJA 2 The arresting officer must advise the YP without delay of their right to counsel. 3 When a YP is not represented by counsel the justice, youth court judge, or review board MUST advise the YP of their right to counsel and provide a reasonable opportunity for the YP to obtain counsel.

4 When a YP wishes to obtain counsel but is unable to do so the youth justice court before which the hearing, trial, or review is being held a MUST refer the YP to a legal aid program, where there is program in place, to obtain counsel AND b MAY direct that the YP be represented by counsel if no legal aid program is available or if the YP is unable to obtain counsel through the program OR MUST direct that the YP be represented by counsel

Referral to Child Welfare Overview 118 Right to Counsel Rights of young person 119 REFERRAL TO CHILD WELFARE RIGHT TO COUNSEL

Overview s.35 Rights of young person to counsel s.25 A court may refer a YP to a child welfare agency at any 1 A YP has the right to retain and instruct counsel without stage of the proceedings, for assessment to determine delay and to exercise that right personally whether the YP is in need of child welfare services. This • at any stage of the proceedings against the YP referral can be made in addition to any order the court may AND make. • before and during any consideration of whether to use an EJS instead of starting or continuing judicial proceedings under the YCJA 2 The arresting officer must advise the YP without delay of their right to counsel. 3 When a YP is not represented by counsel the justice, youth court judge, or review board MUST advise the YP of their right to counsel and provide a reasonable opportunity for the YP to obtain counsel.

Referral to Child Welfare Overview 118 Right to Counsel Rights of young person 119 REFERRAL TO CHILD WELFARE

if the YP requests it 5 Where there is a direction for counsel to be appointed under s.25(4)(b) the Attorney General MUST appoint counsel or make sure counsel is appointed to represent the YP. 8 The youth court judge MUST make sure the YP is represented by counsel independent of the parent if • the interests of the YP and the parents of the YP are in conflict OR • it would be in the best interests of the YP 9 A statement that a YP has the right to be represented by counsel MUST be included in a number of documents listed in this subsection. 10 The province can establish a cost-recovery program to recover the cost of legal counsel from a YP or their parents after the appeal period has expired or all appeals are completed. 11 The provisions which allow a court to direct that counsel be appointed for a YP, and some other right-to-counsel provisions, do NOT apply if the YP is 20 years of age or older at the time of their first appearance for the offence.

Right to Counsel Rights of young person 120

Criteria for admissibility of statements s.146 1 Subject to the provisions of s.146, the law in relation to admissibility of statements for adults applies to statements for YPs. 2 The section applies to what: an oral or written statement made by: a YP who is less than 18 years old to: a peace officer or any other person in authority when: on the arrest and detention of the YP, or in circumstances where the peace officer or other person has reasonable grounds for believing that the YP has committed an offence When these criteria apply, a statement will be admissible in evidence ONLY WHEN the requirements set out in s.146(2) are met a the YP’s statement was voluntary b the following were explained to the YP by the person taking the statement, in language appropriate to the YP’s age, BEFORE the YP made the statement i the YP is under no obligation to make a statement ii any statement made may be used in proceeding against the YP iii the YP has the right to consult counsel and a parent or another person

Right to Counsel Rights of young person 120 Statements Criteria for admissibility 121 if the YP requests it STATEMENTS 5 Where there is a direction for counsel to be appointed under s.25(4)(b) the Attorney General MUST appoint Criteria for admissibility of statements s.146 counsel or make sure counsel is appointed to represent the YP. 1 Subject to the provisions of s.146, the law in relation to admissibility of statements for adults applies to 8 The youth court judge MUST make sure the YP is statements for YPs. represented by counsel independent of the parent if 2 The section applies to • the interests of the YP and the parents of the YP are in conflict what: an oral or written statement OR made by: a YP who is less than 18 years old to: a peace officer or any other person in authority • it would be in the best interests of the YP when: on the arrest and detention of the YP, or in 9 A statement that a YP has the right to be represented by circumstances where the peace officer or other person counsel MUST be included in a number of documents has reasonable grounds for believing that the YP has listed in this subsection. committed an offence 10 The province can establish a cost-recovery program to When these criteria apply, a statement will be admissible recover the cost of legal counsel from a YP or their in evidence ONLY WHEN the requirements set out in parents after the appeal period has expired or all s.146(2) are met appeals are completed. a the YP’s statement was voluntary 11 The provisions which allow a court to direct that counsel be appointed for a YP, and some other right-to-counsel b the following were explained to the YP by the person provisions, do NOT apply if the YP is 20 years of age or taking the statement, in language appropriate to the older at the time of their first appearance for the offence. YP’s age, BEFORE the YP made the statement i the YP is under no obligation to make a statement ii any statement made may be used in proceeding against the YP iii the YP has the right to consult counsel and a parent or another person

Right to Counsel Rights of young person 120 Statements Criteria for admissibility 121 if the YP requests it 5 Where there is a direction for counsel to be appointed under s.25(4)(b) the Attorney General MUST appoint counsel or make sure counsel is appointed to represent the YP. 8 The youth court judge MUST make sure the YP is represented by counsel independent of the parent if • the interests of the YP and the parents of the YP are in conflict OR • it would be in the best interests of the YP 9 A statement that a YP has the right to be represented by counsel MUST be included in a number of documents listed in this subsection. 10 The province can establish a cost-recovery program to recover the cost of legal counsel from a YP or their parents after the appeal period has expired or all appeals are completed. 11 The provisions which allow a court to direct that counsel be appointed for a YP, and some other right-to-counsel provisions, do NOT apply if the YP is 20 years of age or older at the time of their first appearance for the offence. Statements Criteria for admissibility 122

iv the YP has the right to have counsel or any other person consulted, if any, present while any statement is made by the YP c the YP had a reasonable opportunity, before the statement was made, to consult with i counsel AND ii a parent or another specified adult, with some exceptions d if the YP consults someone under (c), the YP is given a reasonable opportunity to make the statement in the presence of that person 3 The requirements set out in s.146(2)(b) to (d) do NOT apply to oral statements made spontaneously by a YP to a peace officer or other person in authority. 4 Waiver of rights – If a YP waives their rights before giving a statement, the waiver can be recorded on audio tape or video tape or given in writing. 5 If a waiver of rights is NOT recorded properly due to a technical irregularity, a judge may still find the waiver valid IF they find that the YP was informed of their rights and voluntarily waived them. 6 Technical irregularity in complying with rights – Where there has been a technical irregularity in complying with the rights under s.146(2)(b) to (d), the court may admit the YP’s statement into evidence ONLY IF satisfied that the admission of the statement would NOT bring into disrepute the principle that YPs are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.

Statements Criteria for admissibility 122

Overview When a new law comes into force there are often transitional provisions that set the rules for • offences that took place before the new law comes into force • proceedings that have either not started or have not concluded before the new law comes into force Transitional provisions set the rules for the transition from the old to the new law. There are two sets of Transitional Provisions for the YCJA. For a complete understanding of the transitional provisions you must read both sets of provisions together.

Transitional Provisional Overview 123 Transitional Provisional Before October 23, 2012 124

TRANSITIONAL PROVISIONS The most recent transitional provisions: offence occurred but no proceedings Overview started BEFORE October 23, 2012 s.195 SS & CA 2012 When a new law comes into force there are often transitional provisions that set the rules for This includes any person who - committed an offence • offences that took place before the new law comes into - before October 23, 2012 force - while they were a YP • proceedings that have either not started or have not AND concluded before the new law comes into force - for which no proceedings were started Transitional provisions set the rules for the transition from The YP MUST be dealt with under the YCJA as amended by the old to the new law. this part as if the offence occurred after October 23, 2012 There are two sets of Transitional Provisions for the YCJA. EXCEPT THAT certain provisions do not apply for the offence s.195(a) to (e) For a complete understanding of the transitional provisions you must read both sets of provisions together. a the definition “violent offence” in subsection 2(1) of the YCJA SS & CA s.167(3) b paragraph 3(1)(a) of that act SS & CA s.168(1) c paragraph 38(2)(f) of that act SS & CA s.172 d paragraph 39(1)(c) of that act SS & CA s.173 AND e s.75 of that act SS & CA s.185

For the transition from the YCJA as enacted April 1, 2003 to the YCJA as amended by the SS & CA October 23, 2012

See ss.193, 194 & 195 of the SS & CA 2012

Transitional Provisional Overview 123 The original transitional provisions from the JDA and YOA to the YCJA: offences committed BEFORE April 1, 2003 For the transition from the JDA and YOA to the YCJA enacted April 1, 2003 See YCJA Part 8 Transitional Provisions: ss.158,159,161,162,163,164 & 165 (Note: s.160 was repealed and s.162 was replaced by ss.193 & 194 SS & CA 2012)

Proceedings started under the YOA or JDA BEFORE April 1, 2003 when the YCJA came into force Proceedings which started under the YOA before the YCJA came into force will be dealt with as if the YCJA had NOT come into force, subject to s.161 (Applicable sentence). s.159(1) Proceedings which started under the JDA before the YCJA came into force will be dealt with under the YCJA AS IF the delinquency were an offence that occurred AFTER the new act came into force, subject to s.161 (Applicable sentence). s.159(2)

Proceedings started AFTER April 1, 2003 when the YCJA came into force No proceedings may be started under the YOA or the JDA after the YCJA came into force. They must be started under the YCJA. s.158

Transitional Provisions Before April 1, 2003 125 Transitional Provisions Before April 1, 2003 126

The original transitional provisions from the For the purposes of ss.158 & 159, a proceeding is started JDA and YOA to the YCJA: by laying an information or indictment. s.162 offences committed BEFORE April 1, 2003 Sentencing where proceedings started under the YOA For the transition from the JDA and YOA to the YCJA or JDA BEFORE April 1, 2003 when the YCJA came into enacted April 1, 2003 force See YCJA Part 8 Transitional Provisions: Applicable sentence ss.161(1)(a) & (b): For proceedings that ss.158,159,161,162,163,164 & 165 started under either the YOA or the JDA, the sentencing (Note: s.160 was repealed and s.162 was replaced by provisions of the YCJA apply EXCEPT THAT ss.193 & 194 SS & CA 2012) a paragraph 110(2)(b) [if a youth sentence is for a violent offence and the youth justice court has lifted the publication ban under s.75(2)] does Proceedings started under the YOA or JDA BEFORE NOT APPLY for the offence or delinquency April 1, 2003 when the YCJA came into force AND Proceedings which started under the YOA before the YCJA came into force will be dealt with as if the YCJA had NOT b paragraph 42(2)(r), (IRCS sentence) DOES APPLY IF come into force, subject to s.161 (Applicable sentence). the YP consents s.159(1) Proceedings which started under the JDA before the YCJA Sentencing under YCJA while YP serving a custodial came into force will be dealt with under the YCJA AS IF the sentence under the YOA delinquency were an offence that occurred AFTER the new IF act came into force, subject to s.161 (Applicable sentence). - a YP is serving a custodial sentence under the YOA s.159(2) AND Proceedings started AFTER April 1, 2003 when the - the YP is to be sentenced under the YCJA for another YCJA came into force offence No proceedings may be started under the YOA or the JDA after the YCJA came into force. They must be started under THEN the YCJA. s.158 - if either the Crown or the court MUST order that the remaining part of the disposition made under the YOA

Transitional Provisions Before April 1, 2003 125 be dealt with as if it were a custody and supervision sentence imposed under s.42(2)(n) or (q) of the YCJA YP applies UNLESS - to do so would bring the administration of justice into disrepute This allows the sentence to include a period of supervision in the community. s.161(2)

Reviewing a sentence

The date a disposition came into effect under the YOA is the date used to determine when a sentence may be reviewed. s.161(3)

Transitional Provisions - Before April 1, 2003 127 Relevant Provincial Legislation CFSA Temporary noitneteD 821 RELEVANT PROVINCIAL LEGISLATION Child and Family Services Act (CFSA)– Temporary Detention

Overview Child and Family Services Act, R.S.O. 1990, c. 11, Part IV – Youth Justice

The provincial director determines whether a young person is placed in secure or open detention pending sentencing, if they are detained after a bail hearing. This is subject to review before a youth justice court.

Relevant Provincial Legislation CFSA Temporary noitneteD 821 RELEVANT PROVINCIAL LEGISLATION Child and Family Services Act (CFSA)– Temporary Detention

Overview Child and Family Services Act, R.S.O. 1990, c. 11, Part IV – Youth Justice

Temporary Detention Open detention unless provincial director determines otherwise 93. (1) A young person who is detained under the federal Act or the Young Offenders Act (Canada) in a place of temporary detention shall be detained in a place of open temporary detention unless a provincial director determines under subsection (2) that the young person is to be detained in a place of secure temporary detention. R.S.O. 1990, c. C.11, s. 93 (1); 2006, c. 19, Sched. D, s. 2 (18). Where secure detention available (2) A provincial director may detain a young person in a place of secure temporary detention if the provincial director is satisfied that it is necessary on one of the following grounds: 1. The young person is charged with an offence for which an adult would be liable to imprisonment for five years or more and, i. the offence includes causing or attempting to cause serious bodily harm to another person, ii. the young person has, at any time, failed to appear in court when required to do so under the federal Act or the Young Offenders Act (Canada) or escaped or attempted to escape from lawful detention, or iii. the young person has, within the 12 months immediately preceding the offence on which the current charge is based, been convicted of an offence for which an adult would be liable to imprisonment for five years or more. 2. The young person is detained in a place of temporary detention and leaves or attempts to leave without the consent of the person in charge or is charged with having escaped or attempting to escape from lawful custody or being unlawfully at large under the Criminal Code (Canada).

Relevant Provincial Legislation CFSA Temporary Relevant Provincial Legislation CFSA Temporary noitneteD 821 Detention 129 RELEVANT PROVINCIAL Where secure detention available (2) A provincial director may detain a young person LEGISLATION in a place of secure temporary detention if the provincial Child and Family Services Act (CFSA)– director is satisfied that it is necessary on one of the Temporary Detention following grounds: 1. The young person is charged with an offence for which an adult would be liable to imprisonment for five Overview years or more and, i. the offence includes causing or attempting to Child and Family Services Act, R.S.O. 1990, c. 11, Part IV cause serious bodily harm to another person, – Youth Justice ii. the young person has, at any time, failed to appear in court when required to do so under The provincial director determines whether a young person is placed in secure or open detention pending sentencing, if the federal Act or the Young Offenders they are detained after a bail hearing. This is subject to Act (Canada) or escaped or attempted to review before a youth justice court. escape from lawful detention, or iii. the young person has, within the 12 months immediately preceding the offence on which Temporary Detention the current charge is based, been convicted of Open detention unless provincial director determines an offence for which an adult would be liable to otherwise imprisonment for five years or more. 93. (1) A young person who is detained under the 2. The young person is detained in a place of federal Act or the Young Offenders Act (Canada) in a place temporary detention and leaves or attempts to leave of temporary detention shall be detained in a place of open without the consent of the person in charge or is temporary detention unless a provincial director determines charged with having escaped or attempting to escape under subsection (2) that the young person is to be detained from lawful custody or being unlawfully at large under in a place of secure temporary detention. R.S.O. 1990, the Criminal Code (Canada). c. C.11, s. 93 (1); 2006, c. 19, Sched. D, s. 2 (18).

Relevant Provincial Legislation CFSA Temporary noitneteD 821 Relevant Provincial Legislation CFSA Temporary Detention 129 RELEVANT PROVINCIAL LEGISLATION Child and Family Services Act (CFSA)– Temporary Detention

Overview Child and Family Services Act, R.S.O. 1990, c. 11, Part IV – Youth Justice

Relevant Provincial Legislation CFSA Temporary Detention 130

3. The provincial director is satisfied, having regard to all the circumstances, including any substantial likelihood the young person will commit a criminal offence or interfere with the administration of justice if placed in a place of open temporary detention, that it is necessary to detain the young person in a place of secure temporary detention, i. to ensure the young person’s attendance at court, ii. for the protection and safety of the public, or iii. for the safety or security within a place of temporary detention. 2009, c. 2, s. 5 (1). Idem (3) Despite subsection (1), a young person who is apprehended because he or she has left or has not returned to a place of secure custody may be detained in a place of secure temporary detention until he or she is returned to the first-named place of custody. R.S.O. 1990, c. C.11, s. 93 (3); 2006, c. 19, Sched. D, s. 2 (20). Idem (4) Despite subsection (1), a young person who is detained under the federal Act or under the Young Offenders Act (Canada) in a place of temporary detention may be detained in a place of secure temporary detention for a period not exceeding twenty-four hours while a provincial director makes a determination in respect of the young person under subsection (2). R.S.O. 1990, c. C.11, s. 93 (4); 2006, c. 19, Sched. D, s. 2 (21). Review by youth justice court (5) A young person who is being detained in a place of secure temporary detention and who is brought before a youth justice court for a review of an order for detention made under the federal Act or the Criminal Code (Canada) may request that the youth justice court review the level of his or her detention. 2009, c. 2, s. 5 (2). Same (6) The youth justice court conducting a review of an order for detention may confirm the provincial director’s decision under subsection (2) or may direct that the young person be transferred to a place of open temporary detention. 2009, c. 2, s. 5 (2).

Application for return to secure temporary detention

(7) A provincial director may apply to a youth justice court for a review of an order directing that a young person be transferred to a place of open temporary detention under subsection (6) on the basis that, (a) the provincial director is satisfied that because of a material change in the circumstances; or (b) on any other grounds that the provincial director considers appropriate, it is necessary that the young person be returned to a place of secure temporary detention. 2009, c. 2, s. 5 (2).

Relevant Provincial Legislation CFSA Temporary Relevant Provincial Legislation CFSA Temporary Detention 130 Detention 131

3. The provincial director is satisfied, having regard to all the circumstances, including any substantial Review by youth justice court likelihood the young person will commit a criminal offence or interfere with the administration of justice if (5) A young person who is being detained in a placed in a place of open temporary detention, that it is place of secure temporary detention and who is brought necessary to detain the young person in a place of before a youth justice court for a review of an order for secure temporary detention, detention made under the federal Act or the Criminal Code (Canada) may request that the youth justice court i. to ensure the young person’s attendance at review the level of his or her detention. 2009, c. 2, s. 5 (2). court, Same ii. for the protection and safety of the public, or (6) The youth justice court conducting a review of iii. for the safety or security within a place of an order for detention may confirm the provincial director’s temporary detention. 2009, c. 2, s. 5 (1). decision under subsection (2) or may direct that the young Idem person be transferred to a place of open temporary (3) Despite subsection (1), a young person who is detention. 2009, c. 2, s. 5 (2). apprehended because he or she has left or has not returned to a place of secure custody may be detained in a place of Application for return to secure temporary secure temporary detention until he or she is returned to the detention first-named place of custody. R.S.O. 1990, c. C.11, s. 93 (3); 2006, c. 19, Sched. D, s. 2 (20). (7) A provincial director may apply to a youth Idem justice court for a review of an order directing that a young (4) Despite subsection (1), a young person who is person be transferred to a place of open temporary detention under subsection (6) on the basis that, detained under the federal Act or under the Young Offenders Act (Canada) in a place of temporary detention (a) the provincial director is satisfied that because may be detained in a place of secure temporary detention of a material change in the circumstances; or for a period not exceeding twenty-four hours while a (b) on any other grounds that the provincial provincial director makes a determination in respect of the director considers appropriate, young person under subsection (2). R.S.O. 1990, c. C.11, s. 93 (4); 2006, c. 19, Sched. D, s. 2 (21). it is necessary that the young person be returned to a place of secure temporary detention. 2009, c. 2, s. 5 (2).

Relevant Provincial Legislation CFSA Temporary Detention 130 Relevant Provincial Legislation CFSA Temporary 3. The provincial director is satisfied, having regard to Detention 131 all the circumstances, including any substantial likelihood the young person will commit a criminal offence or interfere with the administration of justice if placed in a place of open temporary detention, that it is necessary to detain the young person in a place of secure temporary detention, i. to ensure the young person’s attendance at court, ii. for the protection and safety of the public, or iii. for the safety or security within a place of temporary detention. 2009, c. 2, s. 5 (1). Idem (3) Despite subsection (1), a young person who is apprehended because he or she has left or has not returned to a place of secure custody may be detained in a place of secure temporary detention until he or she is returned to the first-named place of custody. R.S.O. 1990, c. C.11, s. 93 (3); 2006, c. 19, Sched. D, s. 2 (20). Idem (4) Despite subsection (1), a young person who is detained under the federal Act or under the Young Offenders Act (Canada) in a place of temporary detention may be detained in a place of secure temporary detention for a period not exceeding twenty-four hours while a provincial director makes a determination in respect of the young person under subsection (2). R.S.O. 1990, c. C.11, s. 93 (4); 2006, c. 19, Sched. D, s. 2 (21). Relevant Provincial Legislation CFSA Temporary Detention 132

Same

(8) The youth justice court conducting a review of an order transferring a young person to a place of open temporary detention may confirm the court’s decision under subsection (6) or may direct that the young person be transferred to a place of secure temporary detention. 2009, c. 2, s. 5 (2).

Review of Detention - Criminal Code

The Criminal Code of Canada (CCC) s. 525 provides for a review of the detention of accused persons held in custody pending trial under certain circumstances in accordance with deadlines established in that section.

Relevant Provincial Legislation CFSA Temporary Detention 132

Same

Review of Detention - Criminal Code

A young person may apply to the Board for a review of: The particular place where they are held or transferred CFSA s. 97(1)(b)

The Provincial Director’s refusal to authorize the young person’s temporary release under s.35 of the YOA or reintegration leave under the YCJA s. 91

The young person’s transfer from a place of open custody to a place of secure custody under subsection 24.2 (9) of the YOA in accordance with the YCJA s. 88

Relevant Provincial Legislation CFSA Temporary Relevant Provincial Legislation CFSA Custody Review Detention 132 Board 133

Same

(8) The youth justice court conducting a review of an order transferring a young person to a place of open Custody Review Board CFSA S. 97 temporary detention may confirm the court’s decision under subsection (6) or may direct that the young person be A young person may apply to the Board for a review of: transferred to a place of secure temporary detention. 2009, c. 2, s. 5 (2). The particular place where they are held or transferred CFSA s. 97(1)(b)

Review of Detention - Criminal Code The Provincial Director’s refusal to authorize the young person’s temporary release under s.35 of the YOA or reintegration leave under the YCJA s. 91 The Criminal Code of Canada (CCC) s. 525 provides for a review of the detention of accused persons held in custody The young person’s transfer from a place of open pending trial under certain circumstances in accordance with custody to a place of secure custody under subsection deadlines established in that section. 24.2 (9) of the YOA in accordance with the YCJA s. 88

Relevant Provincial Legislation CFSA Temporary Detention 132 Relevant Provincial Legislation CFSA Custody Review Same Board 133 (8) The youth justice court conducting a review of an order transferring a young person to a place of open temporary detention may confirm the court’s decision under subsection (6) or may direct that the young person be transferred to a place of secure temporary detention. 2009, c. 2, s. 5 (2).

Review of Detention - Criminal Code

PROVINCIAL OFFENCES ACT (POA)

Overview In Ontario, provincial statute violations, such as those listed below are prosecuted under the Provincial Offences Act (POA): trespassing (Trespass to Property Act) careless driving (Highway Traffic Act) drinking under age ( Liquor License Act) Habitual absence from school ( Education Act)

Part VI of the POA applies where a young person is alleged to have committed a provincial offence.

Relevant Provincial Legislation Provincial Offences Act (POA) 134

PROVINCIAL OFFENCES ACT (POA)

Part VI of the POA applies where a young person is alleged to have committed a provincial offence.

Provincial offences officers are not permitted to issue tickets to young persons for minor offences in the way they do for adults. Unless he or she is in custody, a young person must always receive a summons to attend court in person. An officer must also serve a copy of the summons on the parent or guardian as soon as practicable after serving the summons or releasing the young person from custody. (Ss.93 and 96) Where a young person is detained, the officer in charge must notify the parent of the young person’s arrest, the reason for the arrest and the place of detention. 107(4)

POA charges are heard in the Ontario Court of Justice and may be presided over by a judge or a justice of the peace. Unlike the YCJA, there is no provision requiring that officials dealing with youth provincial offences matters be designated Youth Court judges. However, a Justice of the Peace cannot preside over a breach of probation hearing for a young person (s. 108).

Arrest Without Warrant A provincial offences officer may arrest without warrant a young person if they have reasonable and probable grounds to believe it is necessary to: (a) identify the young person; or (b) prevent an offence that endangers the young person or the person or property of another. s. 106

Relevant Provincial Legislation Provincial Offences Act Relevant Provincial Legislation POA Arrest Without (POA) 134 Warrant 135

PROVINCIAL OFFENCES ACT (POA)

An officer must also serve a copy of the summons on the Overview parent or guardian as soon as practicable after serving the summons or releasing the young person from custody. In Ontario, provincial statute violations, such as those listed (Ss.93 and 96) Where a young person is detained, the below are prosecuted under the Provincial Offences Act officer in charge must notify the parent of the young person’s (POA): arrest, the reason for the arrest and the place of detention. trespassing (Trespass to Property Act) 107(4) careless driving (Highway Traffic Act) drinking under age ( Liquor License Act) POA charges are heard in the Ontario Court of Justice and may be presided over by a judge or a justice of the peace. Habitual absence from school ( Education Act) Unlike the YCJA, there is no provision requiring that officials dealing with youth provincial offences matters be designated Youth Court judges. However, a Justice of the Peace cannot Part VI of the POA applies where a young person is alleged preside over a breach of probation hearing for a young to have committed a provincial offence. person (s. 108).

Unlike the YCJA, the POA treats people who are 16 years old or more as adults. A “young person” under the POA is between 12 and 15 years of age at the time of the offence. s. 93 A person cannot be convicted under the POA for an Arrest Without Warrant offence committed while he or she was less than 12 years A provincial offences officer may arrest without warrant a old. s. 94. young person if they have reasonable and probable grounds to believe it is necessary to: (a) identify the young person; or (b) prevent an offence that endangers the young person or Provincial offences officers are not permitted to issue tickets the person or property of another. s. 106 to young persons for minor offences in the way they do for adults. Unless he or she is in custody, a young person must always receive a summons to attend court in person.

Relevant Provincial Legislation Provincial Offences Act (POA) 134

PROVINCIAL OFFENCES ACT (POA) Relevant Provincial Legislation POA Arrest Without Warrant 135

Part VI of the POA applies where a young person is alleged to have committed a provincial offence.

Release of Young Person Section 107 of the POA sets out the process for releasing a young person who has been arrested for a provincial offence.

The young person must be released by the arresting officer unconditionally or after being served with a summons, unless the officer has reasonable and probable grounds to believe the detention is necessary to identify the young person, or to prevent an offence that is a serious danger to a person or property. s. 107(2)

If the circumstances justifying detention pass (107(2)), an officer in charge must release the young person unconditionally, serve him/her with a summons, or require the young person to enter into a recognizance without sureties. s. 107(3)

If the officer in charge does not release the young person, the bail process in section 150 of the POA and the expedited trial provision in s. 151 apply with necessary modifications. s. 107(5)

Relevant Provincial Legislation POA Release of Young Person 136

Release of Young Person Section 107 of the POA sets out the process for releasing a young person who has been arrested for a provincial offence.

If the officer in charge does not release the young person, the bail process in section 150 of the POA and the expedited trial provision in s. 151 apply with necessary modifications. s. 107(5)

Trial The young person must be present during their trial, unless the court orders otherwise. s. 98(1)

Unlike adult POA matters, a young person cannot be charged with failing to appear, and the court cannot hold an ex parte trial. s. 98(3)

Processes for dealing with a young person who fails to appear are provided in ss. 98(4) and 98(5).

Exclusion of Public, Publication Bans, and Disclosure of Youth Matters

The court may exclude any member of the public from a provincial offences hearing to maintain order in the courtroom, to protect the reputation of a minor, or to remove an influence that may affect the testimony of a witness. s. 52(2)

The court may also impose a publication ban on the evidence or the identity of a minor if there is a risk that it may impugn the reputation of the minor. s. 52(3)

Relevant Provincial Legislation POA Release of Young Relevant Provincial Legislation POA – Trial /Exclusion Person 136 137

Release of Young Person Trial Section 107 of the POA sets out the process for releasing a The young person must be present during their trial, unless young person who has been arrested for a provincial the court orders otherwise. s. 98(1) offence.

Unlike adult POA matters, a young person cannot be The young person must be released by the arresting officer charged with failing to appear, and the court cannot hold an unconditionally or after being served with a summons, ex parte trial. s. 98(3) unless the officer has reasonable and probable grounds to believe the detention is necessary to identify the young person, or to prevent an offence that is a serious danger to a Processes for dealing with a young person who fails to person or property. s. 107(2) appear are provided in ss. 98(4) and 98(5).

If the circumstances justifying detention pass (107(2)), an officer in charge must release the young person Exclusion of Public, Publication Bans, and unconditionally, serve him/her with a summons, or require the young person to enter into a recognizance without Disclosure of Youth Matters sureties. s. 107(3) The court may exclude any member of the public from a provincial offences hearing to maintain order in the If the officer in charge does not release the young person, courtroom, to protect the reputation of a minor, or to remove the bail process in section 150 of the POA and the expedited an influence that may affect the testimony of a witness. s. trial provision in s. 151 apply with necessary modifications. 52(2) s. 107(5)

The court may also impose a publication ban on the evidence or the identity of a minor if there is a risk that it may impugn the reputation of the minor. s. 52(3)

Relevant Provincial Legislation POA Release of Young Relevant Provincial Legislation POA – Trial /Exclusion Person 136 137

Release of Young Person Section 107 of the POA sets out the process for releasing a young person who has been arrested for a provincial offence.

If the officer in charge does not release the young person, the bail process in section 150 of the POA and the expedited trial provision in s. 151 apply with necessary modifications. s. 107(5) Relevant Provincial Legislation POA - Exclusion 138

In addition to these general provisions, s. 99(1) provides that no person shall publish by any means information that may identify a young person in connection with an offence or alleged offence. Anyone who does so, and every director, officer or employee of a corporation who authorizes, permits or acquiesces to such disclosure, is guilty of an offence under the POA and liable to a maximum $10,000 fine. s. 99(2)

The publication ban provided in s. 99(1) does not prohibit: disclosure by the young person concerned • disclosure by the young person's parent or lawyer for the purpose of protecting the young person's interests • disclosure by a police officer for the purpose of investigating an offence which the young person is suspected of having committed • disclosure to an insurer investigating an offence committed or alleged to have been committed by the young person • disclosure in the course of the administration of justice and not to make the information known generally in the community • disclosure by a person prescribed by regulation for a designated purpose

Relevant Provincial Legislation POA - Exclusion 138

Pre-Sentence Reports Where a young person is convicted of a provincial offence, the court may direct a Probation Officer to prepare and file a written Pre-Sentence Report (PSR) to assist the court in sentencing. ss. 56 (1), 100(1)

A PSR is mandatory where a young person is convicted of breach of probation under s.75 and the court is considering imposing a sentence of custody. s. 100(2)

The clerk of the court must ensure that the defendant, their representative, and the prosecutor receive a copy of any PSR. ss. 56, 100(2)

Sentencing

When a young person is convicted of a provincial offence in a proceeding commenced by Certificate of Offence, they may be sentenced to: • a maximum fine of $300 s. 97(1)(a)(i) • a probation order for a maximum of 90 days ss. 97(1)(a)(ii), 97(2) or • an absolute discharge s. 97(1)(b).

Relevant Provincial Legislation POA - Exclusion 138 Relevant Provincial Legislation Pre-Sentence Reports 139 In addition to these general provisions, s. 99(1) provides that no person shall publish by any means information that may identify a young person in connection with an offence or Pre-Sentence Reports alleged offence. Anyone who does so, and every director, Where a young person is convicted of a provincial offence, officer or employee of a corporation who authorizes, permits the court may direct a Probation Officer to prepare and file a or acquiesces to such disclosure, is guilty of an offence written Pre-Sentence Report (PSR) to assist the court in under the POA and liable to a maximum $10,000 fine. s. sentencing. ss. 56 (1), 100(1) 99(2)

A PSR is mandatory where a young person is convicted of The publication ban provided in s. 99(1) does not prohibit: breach of probation under s.75 and the court is considering disclosure by the young person concerned imposing a sentence of custody. s. 100(2) • disclosure by the young person's parent or lawyer for the purpose of protecting The clerk of the court must ensure that the defendant, their the young person's interests representative, and the prosecutor receive a copy of any • disclosure by a police officer for the purpose of investigating an offence which the young PSR. ss. 56, 100(2) person is suspected of having committed • disclosure to an insurer investigating an offence committed or alleged to have been committed by the young person Sentencing • disclosure in the course of the administration of justice and not to make the information known generally in the community When a young person is convicted of a provincial offence in • disclosure by a person prescribed by a proceeding commenced by Certificate of Offence, they regulation for a designated purpose may be sentenced to: • a maximum fine of $300 s. 97(1)(a)(i) • a probation order for a maximum of 90 days ss. 97(1)(a)(ii), 97(2) or • an absolute discharge s. 97(1)(b).

When a young person is convicted of a provincial offence commenced by an Information under Part III, they may be sentenced to: • a maximum fine of $1000 s. 101(2)(a)(i) • a probation order for a maximum of 1 year ss. 101(2)(a)(ii), 101(3) or • an absolute discharge s. 101(2)(b). • A young person may only be sentenced to custody if they have been convicted of breach of probation under s. 75(d). In these instances, they may only be sentenced for a maximum of 30 days. s. 101(1)(a)

Sections 68 and 69 provide the mechanisms for enforcing defaulted fines. Note that persons under the age of 18 cannot be imprisoned for defaulted fines. s. 69(20) and 102(1).

Relevant Provincial Legislation Sentencing 140

Sections 68 and 69 provide the mechanisms for enforcing defaulted fines. Note that persons under the age of 18 cannot be imprisoned for defaulted fines. s. 69(20) and 102(1).

Detention/Custody Facility Placement The CFSA provides direction with respect to placement of a young person who has been ordered detained in custody pending trial or sentenced to custody under the POA. Even though a 16 or 17 year-old is not necessarily a young person under the POA, they are generally placed in a facility for young persons, as they are considered a young person under the CFSA. Pre-Trial Detention When a young person is ordered detained in custody pending trial under s. 150 of the POA, the young person shall not be detained in a facility housing adults unless the court orders otherwise. s. 107(6)

Where practicable, a young person shall be detained in a place of temporary detention, as designated under s. 30(1) of the YCJA. s. 107(7). In Ontario, a place of temporary detention is as in s. 94(1) CFSA. Sentence to Custody A young person shall not receive custody except for a breach of probation. s. 101(1)(a), 75 (d)).

A young person sentenced to custody under the POA serves his/her sentence in a place of open custody as defined by s. 24.1 of the Young Offenders Act, s. 103 POA and ss. 94(2)(a) and 95, CFSA.

Appeals Appeals of proceedings against young persons are made to the Superior Court of Justice. s. 105, 116(2)(b). Appeal procedures and powers of the court are set out in ss. 116-139. Further appeal to the Court of Appeal is permitted with leave of a judge of that court. s. 131, 139.

Relevant Provincial Legislation Sentencing 140 Relevant Provincial Legislation Detention Custody 141

When a young person is convicted of a provincial offence Pre-Trial Detention commenced by an Information under Part III, they may be When a young person is ordered detained in custody sentenced to: pending trial under s. 150 of the POA, the young person • a maximum fine of $1000 s. 101(2)(a)(i) shall not be detained in a facility housing adults unless the • a probation order for a maximum of 1 year court orders otherwise. s. 107(6) ss. 101(2)(a)(ii), 101(3) or • an absolute discharge s. 101(2)(b). Where practicable, a young person shall be detained in a • place of temporary detention, as designated under s. 30(1) of the YCJA. s. 107(7). In Ontario, a place of temporary A young person may only be sentenced to custody if they detention is as in s. 94(1) CFSA. have been convicted of breach of probation under s. 75(d). In these instances, they may only be sentenced for a Sentence to Custody maximum of 30 days. s. 101(1)(a) A young person shall not receive custody except for a breach of probation. s. 101(1)(a), 75 (d)). Sections 68 and 69 provide the mechanisms for enforcing defaulted fines. Note that persons under the age of 18 A young person sentenced to custody under the POA cannot be imprisoned for defaulted fines. s. 69(20) and serves his/her sentence in a place of open custody as 102(1). defined by s. 24.1 of the Young Offenders Act, s. 103 POA and ss. 94(2)(a) and 95, CFSA.

Detention/Custody Facility Placement Appeals The CFSA provides direction with respect to placement of a young person who has been ordered detained in custody Appeals of proceedings against young persons are made to pending trial or sentenced to custody under the POA. Even the Superior Court of Justice. s. 105, 116(2)(b). though a 16 or 17 year-old is not necessarily a young person Appeal procedures and powers of the court are set out in ss. under the POA, they are generally placed in a facility for 116-139. young persons, as they are considered a young person under the CFSA. Further appeal to the Court of Appeal is permitted with leave of a judge of that court. s. 131, 139.

Relevant Provincial Legislation Sentencing 140 Relevant Provincial Legislation Detention Custody 141

Sections 68 and 69 provide the mechanisms for enforcing defaulted fines. Note that persons under the age of 18 cannot be imprisoned for defaulted fines. s. 69(20) and 102(1).

Young Offenders Act – Reference for Level of Determination

Young Offenders Act R.S.C. 1985, c .1, Y-1 (repealed by Y.C.J.A. S.C. 2002, c. 1. s. 199)1 Certain provisions of the YOA were incorporated into the YCJA by reference. They continue to have relevance as they provide the legislative provisions a court must consider when determining the level of custody to impose on a young person at the time of sentencing. Note: Section 88 of the YCJA states: “88. The lieutenant-governor in council of a province may order that the power to make determinations of the level of custody for young persons and to review the determinations be exercised in accordance with the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. The following provisions of that Act apply, with any modifications that the circumstances required, to the exercise of those powers: … (c) sections 24.1 to 24.3 ….” The Ontario Government, by virtue of Order-in-Council 498/2004, has incorporated those provisions into the powers of Youth Justice Court Judges in Ontario. It is an error of law

1 Hereinafter “YOA”. Relevant Provincial Legislation YOA 142

Young Offenders Act – Reference for Level of Determination

1 Hereinafter “YOA”. for a Youth Justice Court Judge to not determine the level of custody in accordance with these provisions.2

Sections 24.1(1) – 24.1(4) of the YOA:3

24.1 (1) In this section and sections 24.2, 24.3, 28 and 29, “open custody” “open custody” means custody in

(a) a community residential centre, group home, child care institution, or forest or wilderness camp, or

(b) any other like place or facility designated by the Lieutenant Governor in Council of a province or his delegate as a place of open custody for the purposes of this Act, and includes a place or facility within a class of such places or facilities so designated; “secure custody”

2 R. v. L.B. 2008 ONCA 333 YOA 3 YCJA While sections 24.1‐24.3 of the are technically incorporated by virtue of s. 88 of the L.B., , for the purposes of thsupra e Pocket Guide only the sections cited by the Ontario Court of Appeal in . are excerpted. Crowns must justify their position based on the applicable law, which Relevant Provincial Legislation YOA 142 includes these provisions. Relevant Provincial Legislation YOA for a Youth Justice Court Judge to not determine the level of custody in accordance with these provisions.2 Young Offenders Act – Reference for Level of Determination Sections 24.1(1) – 24.1(4) of the YOA:3

24.1 (1) In this section and sections Young Offenders Act R.S.C. 1985, c .1, Y-1 24.2, 24.3, 28 and 29, (repealed by Y.C.J.A. S.C. 2002, c. 1. s. 199)1 “open custody” Certain provisions of the YOA were incorporated into the YCJA by reference. They continue to have relevance as “open custody” means custody in they provide the legislative provisions a court must consider when determining the level of custody to impose on a young (a) a community residential centre, group home, child person at the time of sentencing. care institution, or forest or wilderness camp, or

Note: Section 88 of the YCJA states: (b) any other like place or facility “88. The lieutenant-governor in council of a province may designated by the Lieutenant Governor in Council of a order that the power to make determinations of the level of province or his delegate as a place of open custody for the custody for young persons and to review the determinations purposes of this Act, and includes a place or facility within a be exercised in accordance with the Young Offenders Act, class of such places or facilities so designated; “secure chapter Y-1 of the Revised Statutes of Canada, 1985. The custody” following provisions of that Act apply, with any modifications that the circumstances required, to the exercise of those powers: … (c) sections 24.1 to 24.3 ….” The Ontario Government, by virtue of Order-in-Council 2 R. v. L.B. 2008 ONCA 333 498/2004, has incorporated those provisions into the powers YOA of Youth Justice Court Judges in Ontario. It is an error of law 3 YCJA While sections 24.1‐24.3 of the are technically incorporated by virtue of s. 88 of the

L.B., , for the purposes of thsupra e Pocket Guide only the sections cited by the Ontario Court of Appeal in . are excerpted. Crowns must justify their position based on the applicable law, which 1 Hereinafter “YOA”. includes these provisions. Relevant Provincial Legislation YOA Relevant Provincial Legislation YOA 144

“secure custody” means custody in a place or facility designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young persons, and includes a place or facility within a class of such places or facilities so designated.

Youth court to specify type of custody

(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody.

…4

4 Sub(3) refers to provinces where the Lieutenant Governor‐in‐Council delegated the authority to set the level of custody to the Provincial Director. As this does not apply to Ontario, it is not included in Relevant Provincial Legislation YOA 144 the Pocket Guide. “secure custody” means custody in a place or facility designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young persons, and includes a place or facility within a class of such places or facilities so designated.

Youth court to specify type of custody

…4

(4) In deciding whether a young person shall be placed in open custody or secure custody, the youth court or the provincial director shall take into account the following factors:

(a) that a young person should be placed in a level of custody involving the least degree of containment and restraint, having regard to

(i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,

(ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

(iii) the safety of other young persons in custody, and

(iv) the interests of society;

(b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person;

(d) the recommendations, if any, of the youth court or the provincial director, as the case may be.

Relevant Provincial Legislation YOA 144 Relevant Provincial Legislation YOA “secure custody” means custody in a place or facility Factors designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young (4) In deciding whether a young person shall be placed persons, and includes a place or facility within a class of in open custody or secure custody, the youth court or the such places or facilities so designated. provincial director shall take into account the following factors: Youth court to specify type of custody (a) that a young person should be placed in a level of (2) Subject to subsection (3), where the youth court custody involving the least degree of containment and commits a young person to custody under paragraph restraint, having regard to 20(1)(k) or (k.1) or makes an order under subsection (i) the seriousness of the offence in respect of 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order which the young person was committed to custody whether the custody is to be open custody or secure and the circumstances in which that offence was custody. committed,

…4 (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

(iii) the safety of other young persons in custody, and

(iv) the interests of society;

(d) the recommendations, if any, of the youth court or 4 the provincial director, as the case may be. Sub(3) refers to provinces where the Lieutenant Governor‐in‐Council delegated the authority to set the level of custody to the Provincial Director. As this does not apply to Ontario, it is not included in Relevant Provincial Legislation YOA Relevant Provincial Legislation YOA 144 the Pocket Guide. “secure custody” means custody in a place or facility designated by the Lieutenant Governor in Council of a province for the secure containment or restraint of young persons, and includes a place or facility within a class of such places or facilities so designated.

Youth court to specify type of custody

…4

Courts of Justice Act

Provincial law grants authority over youth justice matters to the Ontario Court of Justice. Jurisdiction of Ontario Court of Justice Criminal matters 38. (1) A provincial judge has the power and authority of two or more justices of the peace when sitting in the Ontario Court of Justice and shall exercise the powers and perform the duties that any Act of the Parliament of Canada confers on a provincial court judge when sitting in the Ontario Court of Justice. R.S.O. 1990, c. C.43, s. 38 (1); 1996, c. 25, s. 9 (18). … Youth court and youth justice court (3) The Ontario Court of Justice is a youth court for the purposes of the Young Offenders Act (Canada) and a youth justice court for the purposes of the Youth Criminal Justice Act (Canada). 2006, c. 19, Sched. D, s. 5 (1).

Relevant Provincial Legislation YOA Courts of Justice Act 146

Courts of Justice Act

Overview

Principles of the YCJA – “Accountability” – s. 3(1)(a)(i); s. 38(1) Æ R. v. A.O. (2007), 218 C.C.C. 3d 409 (Ont. C.A.) Accountability requires the imposition of a meaningful consequence which properly reflects the moral culpability of the offender, having regard to: (1) The intentional risk-taking of the offender; (2) The consequential harm caused by the offender; and (3) The normative character of the offender’s conduct.

Principles of the YCJA – “Presumption of Diminished Moral Blameworthiness” – s. 3(1)(b) Æ R. v. D.B. 2008 SCC 25 Young persons are entitled to a presumption of diminished moral blameworthiness since because of their age, they have heightened vulnerability, less maturity, and a reduced capacity for moral judgment.

Case Law 147 Case Law 841 CASE LAW R. v. S.J.L.-G 2009 SCC 14 The creation of this separate youth justice system was based on recognition of the presumption of Overview diminished moral blameworthiness of young persons and on their heightened vulnerability in dealing with the justice system. The effect of the Principles of the YCJA – “Accountability” – objectives of the YCJA is that the courts are asked to favour rehabilitation, reintegration and a fair s. 3(1)(a)(i); s. 38(1) and proportionate accountability that is consistent Æ R. v. A.O. (2007), 218 C.C.C. 3d 409 (Ont. C.A.) with the young person's reduced level of maturity. Accountability requires the imposition of a meaningful consequence which properly reflects Judicial Interim Release - “Responsible Person” s. 31 the moral culpability of the offender, having regard to: R. v. R.D. 2010 ONCA 899 (1) The intentional risk-taking of the offender; Section 31 contemplates a closer level of (2) The consequential harm caused by the supervision by a “responsible person” than that offender; and normally expected of a surety. (3) The normative character of the offender’s It assists with the YCJA’s purpose to reduce conduct. reliance on incarceration for young persons at all stages of proceedings and to give youth Principles of the YCJA – “Presumption of Diminished alternatives to imprisonment. Moral Blameworthiness” – s. 3(1)(b) Sentencing – Open v. Secure Custody – s. 42(n), (o) Æ R. v. D.B. 2008 SCC 25 R. v. L.B. 2008 ONCA 333 Young persons are entitled to a presumption of Open custody is presumed appropriate. The diminished moral blameworthiness since because burden rests on the Crown to prove to the of their age, they have heightened vulnerability, court, beyond a reasonable doubt, why less maturity, and a reduced capacity for moral secure custody is required. judgment.

Case Law 147 R. v. J.S. 2006 O.J. No. 2654 A youth justice court may impose a custody and supervision order that is comprised of secure custody, open custody, and community supervision. Sentencing – Maximum Youth Sentence – s. 42 R. v. D.S. 2008 ONCA 740 The maximum youth sentence available (either two years or three years) must include credit for pre-trial custody, any custody and supervision order, and any term of probation. Sentencing – Credit for Pre-Trial Custody R. v. D.S. 2008 ONCA 740 A young person is typically entitled to 1.5:1 credit for pre-trial custody. However, the court may deviate from this starting point based on the evidence presented at the sentencing hearing. Sentencing – Enhanced Mandatory Minimum Sentence – Adult Sentencing – s. 82(4) R. v. Able [2013] O.J. No. 2675 (Ont. C.A.) A prior youth finding of guilt, if still active within the youth record retention periods found within Part VI of the YCJA, may constitute a prior conviction for the purposes of an enhanced mandatory minimum sentence. This may occur where the subsequent offence occurred when the offender was an adult, but the prior conviction was a finding of guilt when he was a young person.

Case Law 941 Case Law 051

R. v. J.S. 2006 O.J. No. 2654 Sentencing – Adult Sentences – Onus – s. 72 A youth justice court may impose a custody R. v. A.O. (2007), 218 C.C.C. 3d 409 (Ont. and supervision order that is comprised of C.A.) secure custody, open custody, and community supervision. The youth justice court must determine if a youth sentence is sufficiently long to hold a young Sentencing – Maximum Youth Sentence – s. 42 person accountable for his or her offending R. v. D.S. 2008 ONCA 740 behaviour. It does not require proof beyond a reasonable doubt. The onus on the Crown is to The maximum youth sentence available (either satisfy the court, nothing more. two years or three years) must include credit for pre-trial custody, any custody and supervision order, and any term of probation. Sentencing – “History that Indicates a Pattern of… Sentencing – Credit for Pre-Trial Custody R. v. D.S. Findings of Guilt” – s. 39(1)(c) 2008 ONCA 740 A young person is typically entitled to 1.5:1 credit R. v. S.A.C. 2008 SCC for pre-trial custody. However, the court may deviate from this starting point based on the The threshold for demonstrating a “pattern” evidence presented at the sentencing hearing. of findings of guilt is at least three prior Sentencing – Enhanced Mandatory Minimum Sentence convictions unless the sentencing court finds – Adult Sentencing – s. 82(4) that the offences are so similar that pattern of findings of guilt can be found in only two R. v. Able [2013] O.J. No. 2675 (Ont. C.A.) prior convictions. A prior youth finding of guilt, if still active within the Sentencing – “Exceptional Cases” – s. 39(1)(d) youth record retention periods found within Part VI of the YCJA, may constitute a prior conviction for R. v. R.E.W. (2006), 205 C.C.C. (3d) 183 the purposes of an enhanced mandatory minimum (Ont. C.A.) sentence. This may occur where the subsequent offence occurred when the offender was an adult, Exceptional cases are those where any but the prior conviction was a finding of guilt when order, other than custody, would undermine he was a young person. the purposes and principles of sentencing out in s. 38. They are limited to the clearest of cases where a custodial disposition is obviously so shocking as to threaten widely shared community values.

Case Law 941 Statements – Compliance with Statutory Requirements – s. 146(2) Î R. v. L.T. H. 2008 SCC

The test for compliance with the informational requirement is objective. The Crown must prove, beyond a reasonable doubt, that the person in authority took reasonable steps to ensure that the young person understood his or her rights under s. 146 YCJA. However, it does not require the Crown to prove that a young person in fact understood the rights and options explained to them.

Case Law 151 Considerations & Definitions 152

CONSIDERATIONS & DEFINITIONS

The YCJA directs many specific practices and provisions for youth that are not relevant for adults. The following considerations highlight some of the key areas and may assist learning and best practice by youth justice system participants. Some Basics: • Was the YP under 18 as of the date of the alleged offence? • What arrangements have been made to obtain legal advice for the YP? • Notice to Parent – Have the requirements of s.26 been met? • Information – Have all aspects of the information been checked for compliance with the YCJA and the applicable criminal code provisions? • What are the extra steps required during an arraignment for a YP? (These include confirm DOB, parent present or aware, and ss.26 & 32.) • Do the 2012 amendments to the YCJA affect the case? • Statements – Have the requirements of s.146 been met? (requirements over and above Charter and voluntariness considerations) • Disclosure – Has there been full disclosure and if there is an adult co-accused, has the adult file been reviewed • for relevant information as well?

Considerations & Definitions 152

CONSIDERATIONS & DEFINITIONS

Alternatives: • Are there opportunities for restorative justice? • Take into consideration the principles of the act, in particular those relating to EJM (there is a presumption in favour of EJM for initial, non-violent offences). s.4(c). Past convictions or referrals do not preclude future referrals. s.4(d) • Would a s.34 assessment or a s.19 conference – or both – be appropriate or in the best interests of the YP?

Bail: • Keep the following in mind: • The onus is always on the Crown in youth bail matters; there is never a reverse onus. • Is detention being considered as a substitute for child protection, mental health, or other measures? (s.29(1) prohibits this) • Have the requirements of s.29(2) been considered before deciding on detention? • If bail would otherwise have been denied, has the requirement of placing the YP in the care of a responsible person been considered? s.31

Considerations & Definitions 152 Considerations & Definitions 153

CONSIDERATIONS & DEFINITIONS • Is this a violent offence, serious offence, or a serious violent offence for which the adult sentencing provisions may apply? Is the YP entitled to make an The YCJA directs many specific election under s.67? practices and provisions for youth that are not relevant for adults. The following Alternatives: considerations highlight some of the key areas and may assist learning and best • Are there opportunities for restorative justice? • Take into consideration the principles of the act, in practice by youth justice system particular those relating to EJM (there is a presumption participants. in favour of EJM for initial, non-violent offences). Some Basics: s.4(c). Past convictions or referrals do not preclude future referrals. s.4(d) • Was the YP under 18 as of the date of the alleged • Would a s.34 assessment or a s.19 conference – or offence? both – be appropriate or in the best interests of the YP? • What arrangements have been made to obtain legal advice for the YP? Bail: • Notice to Parent – Have the requirements of s.26 been • Keep the following in mind: met? • Information – Have all aspects of the information been • The onus is always on the Crown in youth bail checked for compliance with the YCJA and the matters; there is never a reverse onus. applicable criminal code provisions? • Is detention being considered as a substitute for child • What are the extra steps required during an protection, mental health, or other measures? arraignment for a YP? (These include confirm DOB, (s.29(1) prohibits this) parent present or aware, and ss.26 & 32.) s.29(2) been considered • Do the 2012 amendments to the YCJA affect the case? • Have the requirements of • Statements – Have the requirements of s.146 been met? before deciding on detention? (requirements over and above Charter and voluntariness • If bail would otherwise have been denied, has the considerations) requirement of placing the YP in the care of a • Disclosure – Has there been full disclosure and if there responsible person been considered? s.31 is an adult co-accused, has the adult file been reviewed • for relevant information as well?

Considerations & Definitions 152

Considerations & Definitions 153 CONSIDERATIONS & DEFINITIONS

• Is this an appropriate case for convening a conference to deal with bail conditions? s.19 • Are all of the conditions in any form of judicial interim release required for a specific purpose and has consideration been given to the implications for the YP breaching those conditions?

Considerations & Definitions 154

Sentences: • Be familiar with the sentencing provisions of the YCJA, with attention to these: • The sentencing section of the Criminal Code does not, for the most part, apply to proceedings under the YCJA. s. 50 • What are the 19 possible sentences authorized in s.42? (reprimands, personal service orders, and other options) • What are the principles of sentencing that apply to youth and how do they differ from the CC? (These include no general deterrence, no ladder principle, sentence may not be more onerous than that an adult would face, and that the court must impose the least restrictive sentence that meets the goals. s.38) (See the new paragraph s.38(2)(f) added in the 2012 amendments to include the words “denounce” and “deter,” which are subject to s.38(2)(c))” • What are the legislated pre-conditions for custody? s.39 • Is a deferred custody and supervision order an option in this case? What are the requirements for a deferred custody sentence? s.42(5)(a) & (b) • Keep in mind that the court must consider a youth’s ability to pay over the short term before a fine, compensation order, etc. is imposed. s.54 • What is the maximum sentence that can be imposed in different circumstances? • If probation is being considered, is probation the least restrictive sentencing option available? Would a reprimand, a conditional discharge, or a stand- alone community service order be sufficient? • When considering terms of a conditional discharge or a probation order, are the reasons clear for both the length (time) of the order and the terms or conditions of the order and can they be justified? • If a custodial sentence is being considered • have the requirements for a Presentence Report been met s.39(6) & (7) • is the YP “custody eligible” s.39 as amended by s.39(1)(c) • if custody is the proper sentence, and the offence is not one in which the YP caused or attempted to cause serious bodily harm, has a Deferred Custody and Supervision Order (DSCO), for no more than 6 months, been considered

Considerations & Definitions 154 Considerations & Definitions 155

• Is this an appropriate case for convening a • What are the legislated pre-conditions for custody? s.39 conference to deal with bail conditions? s.19 • Is a deferred custody and supervision order an Are all of the conditions in any form of judicial interim • option in this case? What are the requirements for a release required for a specific purpose and has deferred custody sentence? s.42(5)(a) & (b) consideration been given to the implications for the YP breaching those conditions? • Keep in mind that the court must consider a youth’s ability to pay over the short term before a fine, compensation order, etc. is imposed. s.54 Sentences: • What is the maximum sentence that can be • Be familiar with the sentencing provisions of the YCJA, imposed in different circumstances? with attention to these: • If probation is being considered, is probation the least • The sentencing section of the Criminal Code does restrictive sentencing option available? not, for the most part, apply to proceedings under the Would a reprimand, a conditional discharge, or a stand- YCJA. s. 50 alone community service order be sufficient? • When considering terms of a conditional discharge or • What are the 19 possible sentences authorized in a probation order, are the reasons clear for both the s.42? (reprimands, personal service orders, and length (time) of the order and the terms or conditions of other options) the order and can they be justified? • What are the principles of sentencing that apply to • If a custodial sentence is being considered youth and how do they differ from the CC? (These include no general deterrence, no ladder principle, • have the requirements for a Presentence Report been met s.39(6) & (7) sentence may not be more onerous than that an adult would face, and that the court must impose the • is the YP “custody eligible” least restrictive sentence that meets the goals. s.38) s.39 as amended by s.39(1)(c) (See the new paragraph s.38(2)(f) added in the 2012 • if custody is the proper sentence, and the offence is amendments to include the words “denounce” and not one in which the YP caused or attempted to “deter,” which are subject to s.38(2)(c))” cause serious bodily harm, has a Deferred Custody and Supervision Order (DSCO), for no more than 6 months, been considered

Considerations & Definitions 154 Considerations & Definitions 155

• Keep in mind that conditions imposed in any sentence order should be directly connected to the circumstances of the offence and prevention of re- occurrence. (Conditions must not be imposed because of a desire to generally improve the youth’s circumstances or as issues that would normally be considered in the realm of parenting, eg. general non-association clause where not getting in trouble with youth, curfew if not getting in trouble at night, mandating school or work if not part of what lead the offence to occur – even though those may well all be good ideas. This is the defence perspective and debate may take place at the time of sentencing.) • If the crown has given notice to seek an AS, what are the implications? (Includes court election triggered, jeopardy youth may be facing, what is the test for an AS to be imposed.) s.72 Breaches: • If a YP is returned to the youth justice court because of an allegation of a breach of a condition of a DCSO • has a finding under s.109 been made • is the court is satisfied on “reasonable grounds” that the YP has breached or was about to breach a condition of the order • If there is a breach of a condition of community supervision or conditional supervision, is it clear what the procedures are for breaches of these two different orders?

Considerations & Definitions 156

(see “Custody, Supervision, Enforcement” – “Breach of Supervision Conditions,” p.46)

Considerations & Definitions 156 Considerations & Definitions 157

• Keep in mind that conditions imposed in any • Is the YP facing an allegation of breaching any of these: sentence order should be directly connected to the the supervision portion of a Custody and Supervision circumstances of the offence and prevention of re- Order, a condition of a Conditional Supervision Order or occurrence. a condition, or a Deferred Custody and Supervision Order? (What about the process, the differences in (Conditions must not be imposed because of a desire to process, the onus on the Crown [reasonable grounds to generally improve the youth’s circumstances or as believe the breach occurred], and the options available issues that would normally be considered in the realm of to the court?) parenting, eg. general non-association clause where not getting in trouble with youth, curfew if not getting in (see “Custody, Supervision, Enforcement” – “Breach of trouble at night, mandating school or work if not part of Supervision Conditions,” p.46) what lead the offence to occur – even though those may well all be good ideas. This is the defence perspective and debate may take place at the time of sentencing.) • If the crown has given notice to seek an AS, what are the implications? (Includes court election triggered, jeopardy youth may be facing, what is the test for an AS to be imposed.) s.72 Breaches: • If a YP is returned to the youth justice court because of an allegation of a breach of a condition of a DCSO • has a finding under s.109 been made • is the court is satisfied on “reasonable grounds” that the YP has breached or was about to breach a condition of the order • If there is a breach of a condition of community supervision or conditional supervision, is it clear what the procedures are for breaches of these two different orders?

Considerations & Definitions 156 Considerations & Definitions 157

Definitions from the YCJA s.2(1) Words and expressions used in the YCJA have the same meaning as in the CC unless they are defined differently in the YCJA. s.2(2) This section contains some of the words that are defined differently in the YCJA that are used in this Pocket Guide. s.2(1) adult means a person who is neither a YP nor a child adult sentence, in the case of a YP who is found guilty of an offence, means any sentence that could be imposed on an adult who has been convicted of the same offence child means a person who is or, in the absence of evidence to the contrary, appears to be less than 12 years old conference means a group of persons who are convened to give advice in accordance with s.19 (for more information, see “Conferences,” p.51) custodial portion, with respect to a youth sentence imposed on a YP under paragraphs 42(2)(n),(o),(q) or (r), means the period of time, or the portion of the YP’s youth sentence, that must be served in custody before he or she begins to serve the remainder under supervision in the community subject to conditions under s.42(2)(n) or under conditional supervision under s.42(2)(o),(q) or (r) disclosure means the communication of information other than by way of publication

Definitions from the YCJA 158 Definitions from the YCJA 158

Definitions from the YCJA 158 Definitions from the YCJA 159

Definitionsextrajudicial from measures the YCJA (EJM) means measures other than159 judicial proceedings under this act used to deal with a Definitions from the YCJA s.2(1) YP alleged to have committed an offence, and includes extrajudicial sanctions (EJS) Words and expressions used in the YCJA have the same meaning as in the CC unless they are defined differently in extrajudicial sanction (EJS) means a sanction that is part the YCJA. s.2(2) of a program referred to in s.10 This section contains some of the words that are defined offence means an offence created by an Act of Parliament differently in the YCJA that are used in this Pocket Guide. or any regulation, rule, order, by-law, s.2(1) or ordinance made under an Act of Parliament other than an ordinance of the Northwest Territories or a law of adult means a person who is neither a YP nor a child the Legislature of Yukon or the Legislature for Nunavut adult sentence, in the case of a YP who is found guilty of parent includes, in respect of a YP, any person who is an offence, means any sentence that could be imposed under a legal duty to provide for the YP or any person on an adult who has been convicted of the same offence who has, in law or in fact, the custody or control of the child means a person who is or, in the absence of evidence YP, but does NOT include a person who has the custody to the contrary, appears to be less than 12 years old or control of the YP by reason ONLY of proceedings under this act conference means a group of persons who are convened to give advice in accordance with s.19 pre-sentence report means a report on the personal and (for more information, see “Conferences,” p.51) family history and present environment of a YP made in accordance with s.40 custodial portion, with respect to a youth sentence imposed on a YP under paragraphs 42(2)(n),(o),(q) or provincial director means a person, a group or class of (r), means the period of time, or the portion of the YP’s persons, or a body appointed or designated by or under youth sentence, that must be served in custody before an act of the legislature of a province or by the lieutenant he or she begins to serve the remainder under governor in council of a province or his or her delegate to supervision in the community subject to conditions under perform in that province, either generally or in a specific s.42(2)(n) or under conditional supervision under case, any of the duties or functions of a provincial s.42(2)(o),(q) or (r) director under this act disclosure means the communication of information other than by way of publication

Definitions from the YCJA 158 Definitions from the YCJA 159 Definitions from the YCJA 158

Definitions from the YCJA s.2(1) WordsDefinitions and expressions from the used YCJA in the YCJA have the sames.2(1) Wordsmeaning and as expressions in the CC unless used theyin the are YCJA defined have differently the same in meaningthe YCJA. as s.2(2) in the CC unless they are defined differently in Thisthe YCJA. section s.2(2) contains some of the words that are defined Thisdifferently section in containsthe YCJA some that are of the used words in this that Pocket are defined Guide. differentlys.2(1) in the YCJA that are used in this Pocket Guide. adults.2(1) means a person who is neither a YP nor a child adult sentencemeans a person, in the whocase is of neither a YP who a YP is nor found a child guilty of adultan sentence offence, means, in the anycase sentence of a YP whothat iscould found be guilty imposed of anon offence,an adult whomeans has any been sentence convicted that of could the same be imposed offence childon means an adult a personwho has who been is or,convicted in the absence of the same of evidence offence childto meansthe contrary, a person appears who is to or, be in less the than absence 12 years of evidence old conferenceto the contrary, means appears a group toof bepersons less than who 12 are years convened old to conferencegive advice means in accordance a group of withpersons s.19 who are convened to give(for more advice information, in accordance see “Conferences,”with s.19 p.51) custodial(for more portion information,, with respect see “Conferences,” to a youth sentence p.51) custodialimposed portion on a YP, with under respect paragraphs to a youth 42(2)(n), sentence(o),(q) or imposed(r), means on the a YPperiod under of time,paragraphs or the portion42(2)(n), of(o) the,(q) YP’s or (r)youth, means sentence, the period that mustof time, be orserved the portion in custody of the before YP’s youthhe or shesentence, begins that to serve must thebe servedremainder in custody under before hesupervision or she begins in the to community serve the subjectremainder to conditionsunder under supervisions.42(2)(n) or in under the community conditional subject supervision to conditions under under s.42(2)(n)s.42(2)(o),(q)or under or (r) conditional supervision under disclosures.42(2)(o) means,(q) or the (r) communication of information other disclosurethan by waymeans of publicationthe communication of information other than by way of publication Definitions from the YCJA 061 publication means the communication of information by making it known or accessible to the general public through any means, including print, radio or television broadcast, telecommunication, or electronic means (for more information, see “Publication,” pp.58-59) record includes anything containing information, regardless of its physical form or characteristics, including microform, sound recording, videotape, machine- readable record, and any copy of any of those things that is created or kept for the purposes of this act or for the investigation an offence that is or could be prosecuted under this act serious offence means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more serious violent offence (SVO) means an offence under one of the following provisions of the Criminal Code: a section 231 or 235 (first degree murder or second degree murder); b section 239 (attempt to commit murder); c section 232, 234 or 236 (manslaughter); or d section 273 (aggravated sexual assault). violent offence means a an offence committed by a YP that includes as an element the causing of bodily harm; b an attempt or a threat to commit an offence referred to in paragraph (a); or c an offence in the commission of which a YP endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm. Definitions from the YCJA 061 Definitions from the YCJA 061 publication means the communication of information by publicatmakingion it means known theor accessible communica totion the of general information publi cby throughmaking itany known mean ors, accessible including print,to the radio general or television public broadcast,through any telec meanommunication,s, including print, or el ectronicradio or televisionmeans (for morebroadcast, informatio telecno,mmunication, see “Publication,” or el ectronicpp.58-59) mea ns (for recordmore includes informatio anynt,hing see con“Publication,”taining informa pp.58-59)tion, r egardless recordof its includes physical any formthing or characontainingcteristics, informa inclutionding, regar dless ofmicroform, its physical sound form recording, or charac teristics,videotape, inclu machineding - microform,readable record, sound and recording, any copy videotape, of any of machinethose things- treadahat isb creale record,ted or andkep tany for tcopyhe pur ofpo anyse sof of thos thise act things or f or thethat investigation is created or ankep offencet for the th purat ispo orse coulds of this be act or for theprosecuted investigation under an this offence act that is or could be seriouprosecuteds offence under mean thiss an act indi ctable offence under an Act seriouof Parliaments offence mforean whichs an theindi maximumctable offen punishmentce under an is Act ofimp Parliamentrisonment forfor whichfive years the maximumor more punishment is seriousimpr isonmentviolent offenc for fivee (yearsSVO) or means more an offence seriousunder viol oneent of offencthe folleowing (SVO) provi meanssions an of offen the Criminalce Codeunder: one of the following provisions of the Criminal Codea section: 231 or 235 a section(first degree 231 ormu 235rder or second degree murder); b section(first degree 239 (attmuerdermpt or to secondcommit demugreerder); murder); cb sectionsection 23232,9 (att 234e mptor 23 to6 co (manslammit muughter);rder); or dc sectionsection 27232,3 (ag 234g ravatedor 236 (mansla sexual aussault).ghter); or violdent sectionoffence 27 mean3 (agsgravated sexual assault). violaent anoffence offence mean comms itted by a YP that includes as an a anelemen offencet the comm causiittedng of by bodily a YP harm that ;includes as an b anelemen attemptt the or cau a threatsing of to bodily commit harm an; offence referred b anto in attempt paragrap or ha (athreat); or to commit an offence referred c anto in o ffparagrapence in theh (a co); mmor ission of which a YP endangersc an offence the inlife the or cosafetmmy issionof another of which person a YP endangersby crea ttheing lifea su orbst safetantialy of like anlihoodother personof causing bodily byharm crea. ting a substantial likelihood of causing bodily harm. young person (YP) means a person who is or, in the absence of evidence to the contrary, appears to be 12 youngyears person old or (YP)older, means but less a person than 18 who years is or,old in and, the if the contextabsence requires, of evidence it also to includesthe contrary, any personappears who to be is 12 chargedyears old under or older, this but act less with than having 18 committedyears old and, an offence if the whilecontext he requires, or she was it also a YP, includes or who any is found person guilty who of is an offencecharged under under this this act act with having committed an offence while he or she was a YP, or who is found guilty of an youthoffence custody under facility this act means a facility designated under subsection 85(2) for the placement of YPs and, if so youthdesignated, custody includesfacility means a facility a facilityfor the designated secure restraint under of subsectionYPs, a community85(2) for residential the placement centre, of aYPs group and, home, if so a childdesignated, care institution includes and a facility for the secure restraint of aYPs, forest a community or wilderness residential camp centre, a group home, a child care institution and youtha forest justice or wildernesscourt means camp a youth justice court referred to in s.13 (for more information, see “What constitutes a youthyouth justice justice court court means and judge,” a youth p.7) justice court referred to in s.13 (for more information, see “What constitutes a youthyouth justice justice court court judge and judge,”means p.7)a youth justice court judge referred to in s.13 (for more information, youthsee justice “What courtconstitutes judge a meansyouth justice a youth court justice and court judge,” p.8)judge referred to in s.13 (for more information, see “What constitutes a youth justice court and judge,” youthp.8) sentence means a sentence imposed under section 42,51 or 59 or any of sections 94 to 96 and includes a youthconfirmation sentence ormeans a variation a sentence of that imposed sentence under section 42,51 or 59 or any of sections 94 to 96 and includes a confirmation or a variation of that sentence

Definitions from the YCJA 061 Definitions from the YCJA 161 young person (YP) means a person who is or, in the publication means the communication of information by Definitions from the YCJA 161 absence of evidence to the contrary, appears to be 12 making it known or accessible to the general public years old or older, but less than 18 years old and, if the through any means, including print, radio or television context requires, it also includes any person who is broadcast, telecommunication, or electronic means (for charged under this act with having committed an offence more information, see “Publication,” pp.58-59) while he or she was a YP, or who is found guilty of an record includes anything containing information, regardless offence under this act of its physical form or characteristics, including youth custody facility means a facility designated under microform, sound recording, videotape, machine- subsection 85(2) for the placement of YPs and, if so readable record, and any copy of any of those things designated, includes a facility for the secure restraint of that is created or kept for the purposes of this act or for YPs, a community residential centre, a group home, a the investigation an offence that is or could be child care institution and prosecuted under this act a forest or wilderness camp serious offence means an indictable offence under an Act youth justice court means a youth justice court referred to of Parliament for which the maximum punishment is in s.13 (for more information, see “What constitutes a imprisonment for five years or more youth justice court and judge,” p.7) serious violent offence (SVO) means an offence youth justice court judge means a youth justice court under one of the following provisions of the Criminal judge referred to in s.13 (for more information, Code: see “What constitutes a youth justice court and judge,” a section 231 or 235 p.8) (first degree murder or second degree murder); youth sentence means a sentence imposed under section b section 239 (attempt to commit murder); 42,51 or 59 or any of sections 94 to 96 and includes a c section 232, 234 or 236 (manslaughter); or confirmation or a variation of that sentence d section 273 (aggravated sexual assault). violent offence means a an offence committed by a YP that includes as an element the causing of bodily harm; b an attempt or a threat to commit an offence referred to in paragraph (a); or c an offence in the commission of which a YP endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm. Definitions from the YCJA 061 Definitions from the YCJA 161 Definitions from the YCJA 061 publication means the communication of information by publicatmakingion it means known theor accessible communica totion the of general information publi cby throughmaking itany known mean ors, accessible including print,to the radio general or television public broadcast,through any telec meanommunication,s, including print, or el ectronicradio or televisionmeans (for morebroadcast, informatio telecno,mmunication, see “Publication,” or el ectronicpp.58-59) mea ns (for recordmore includes informatio anynt,hing see con“Publication,”taining informa pp.58-59)tion, r egardless recordof its includes physical any formthing or characontainingcteristics, informa inclutionding, regar dless ofmicroform, its physical sound form recording, or charac teristics,videotape, inclu machineding - microform,readable record, sound and recording, any copy videotape, of any of machinethose things- treadahat isb creale record,ted or andkep tany for tcopyhe pur ofpo anyse sof of thos thise act things or f or tthehat investigation is created or ankep offencet for the th purat ispo orse coulds of this be act or for theprosecuted investigation under an this offence act that is or could be seriouprosecuteds offence under mean thiss an act indi ctable offence under an Act seriouof Parliaments offence mforean whichs an theindi maximumctable offen punishmentce under an is Act impof Parliamentrisonment forfor whichfive years the maximumor more punishment is seriousimpr isonmentviolent offenc for fivee (yearsSVO) or means more an offence seriousunder viol oneent of offencthe folleowing (SVO) provi meanssions an of offen the Criminalce Codeunder: one of the following provisions of the Criminal Codea section: 231 or 235 a section(first degree 231 ormu 235rder or second degree murder); b section(first degree 239 (attmuerdermpt or to secondcommit demugreerder); murder); cb sectionsection 23232,9 (att 234e mptor 23 to6 co (manslammit muughter);rder); or dc sectionsection 27232,3 (ag 234g ravatedor 236 (mansla sexual aussault).ghter); or violdent sectionoffence 27 mean3 (agsgravated sexual assault). violaent anoffence offence mean comms itted by a YP that includes as an a anelemen offencet the comm causiittedng of by bodily a YP harm that ;includes as an b anelemen attemptt the or cau a threatsing of to bodily commit harm an; offence referred b anto in attempt paragrap or ha (athreat); or to commit an offence referred c anto in o ffparagrapence in theh (a co); mmor ission of which a YP endangersc an offence the inlife the or cosafetmmy issionof another of which person a YP endangersby crea ttheing lifea su orbst safetantialy of like anlihoodother personof causing bodily byharm crea. ting a substantial likelihood of causing bodily harm. Definitions from the YCJA 162 youth worker means any person appointed or designated, whether by title of youth worker or probation officer or by any other title, by or under an act of the legislature of a province or by the lieutenant governor in council of a province or his or her delegate to perform in that province, either generally or in a specific case, any of the duties or functions of a youth worker under this act (for more information, see “Youth workers and reintegration,” p.38)

Definitions from the YCJA 162 Definitions from the YCJA 162 youth worker means any person appointed or designated, youthwhether worker by meanstitle of youthany person worker appointed or probation or designated, officer or by whetherany other by title, title by of oryouth under worker an act or of probation the legislature officer ofor a by anyprovince other or title, by bythe or lieutenant under an governor act of the in legislature council of ofa a province or byhis theor her lieutenant delegate governor to perform in council in that of a provinceprovince, or either his or generally her delegate or in ato specific perform case, in that any of the province,duties or functionseither generally of a youth or in worker a specific under case, this anyact of(for the moreduties information, or functions see of a “Youth youth workerworkers under and reintegration,”this act (for morep.38) information, see “Youth workers and reintegration,” p.38)