Custody and Supervision Orders

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General Principles

See also: Dispositions for Young Offenders

Custody and Supervision Orders are available under s. 42(2)(n):

42.
...
Youth sentence
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
...

(n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;

...


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Requirements

Committal to custody
39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;
(b) the young person has failed to comply with non-custodial sentences;
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

Alternatives to custody
(2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.
Factors to be considered
(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

(a) the alternatives to custody that are available;
(b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and
(c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

Imposition of same sentence
(4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.
Custody as social measure prohibited
(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.
...
Length of custody
(8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.
...
2002, c. 1, s. 39; 2012, c. 1, s. 173.


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Section 39 (1) sets out the four "gateways to custody". The first three "gateways" section 39 (1)(a), (b), and (c) are further limited by sections 39 (2) and (3).[1]

Procedural Requirements for Custody Orders
A youth justice must order a pre-sentence report before a custodial sentence can be made.[2]

The pre-sentence report can be omitted on consent of both parties where "the report is not necessary".[3]

Reasons must be given anytime a custodial order is made explaining why non-custodial sentence was not ordered.[4]

  1. R v ST 2009 BC CA 274 at paragraph 16
  2. Section 39 (6) states "(6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel."
  3. Section 39(7) states "(7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary."
  4. Section 39 (9) states "(9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d)."

Section 39(1)(a): Violent Offences

Section 2 defines "violent offence" as:

“violent offence” means

(a) an offence committed by a young person 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 young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

...
2002, c. 1, s. 2, c. 7, s. 274; 2012, c. 1, s. 167; 2014, c. 2, s. 52.


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The term "substantial likelihood" is found in several sections of the Code including the bail provisions and the [[Mental Illness|NCR] provisions.

This definition was added in 2012.[1] Prior to the amendment, violent offence was interpreted to have a "harm-based" approach, such that all "serious violent offences" are also considered "violent offences", it can include psychological harm, and will include harm that is "threatened", as well as "caused or attempted".[2] It will not include where bodily harm is merely intended or where there was a reasonable forseeability of harm.[3]


  1. see Safe Streets and Communities Act, S.C. 2012, s. 1
  2. R v D. (C.); R v K. (C.D.), [2005] 3 SCR 668, 203 CCC (3d) 449
  3. D(C)

Section 39(1)(b): Failure to Comply

Section 39(1)(c): History

Section 39(1)(d): Exceptional Cases

Section 39 (1)(d) is said to be reserved for "exceptional cases" which must be "the clearest of cases where… Custody is obviously the only justifiable disposition". This will include where the circumstances are "so shocking us to threaten widely shared societal views".[1]

Cases that have been held to be exceptional under section 39 (1) include:[2]

  • trafficking in cocaine possession for the purpose of trafficking in cocaine
  • Perjury in a first-degree murder inquiry
  • Breaking entering to steal two Long guns and sawing off their barrels.
  • Possession of a prohibited firearm or unauthorized possession of a firearm in a motor vehicle
  • Possession of a semi automatic handgun
  • Pointing a firearm in circumstances where a youth was accidentally shot
  • A series of residential break ins
  • Stealing a truck and setting it on fire
  1. R v JK, 2011 NWTTC 11 (CanLII) at para 26
    R v W(RE), 2006 CanLII 1761 (ONCA)
  2. JK, supra at para 30

Conditions

Conditions to be included in custody and supervision order
97 (1) Every youth sentence imposed under paragraph 42(2)(n) shall contain the following conditions, namely, that the young person, while serving the portion of the youth sentence under supervision in the community,

(a) keep the peace and be of good behaviour;
(b) report to the provincial director and then be under the supervision of the provincial director;
(c) inform the provincial director immediately on being arrested or questioned by the police;
(d) report to the police, or any named individual, as instructed by the provincial director;
(e) advise the provincial director of the young person’s address of residence and report immediately to the provincial director any change
(i) in that address,
(ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work,
(iii) in the young person’s family or financial situation, and
(iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the sentence; and
(f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization.

Other conditions
(2) The provincial director may set additional conditions that support and address the needs of the young person, promote the reintegration of the young person into the community and offer adequate protection to the public from the risk that the young person might otherwise present. The provincial director shall, in setting the conditions, take into account the needs of the young person, the most effective programs for the young person in order to maximize his or her chances for reintegration into the community, the nature of the offence and the ability of the young person to comply with the conditions.

Communication of conditions
(3) The provincial director shall

(a) cause the conditions to be read by or to the young person bound by them;
(b) explain or cause to be explained to the young person the purpose and effect of the conditions, and confirm that the young person understands them; and
(c) cause a copy of the conditions to be given to the young person, and to a parent of the young person.

Provisions to apply
(4) Subsections 56(3) (endorsement of order by young person) and (4) (validity of order) apply, with any modifications that the circumstances require, in respect of conditions under this section.


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Breach of Custody and Supervision Orders

Suspension of conditional supervision
106 If the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition of an order made under subsection 105(1), the provincial director may, in writing,

(a) suspend the conditional supervision; and
(b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until a review is conducted under section 108 and, if applicable, section 109.

Apprehension
107 (1) If the conditional supervision of a young person is suspended under section 106, the provincial director may issue a warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving.

Warrants
(2) A warrant issued under subsection (1) shall be executed by any peace officer to whom it is given at any place in Canada and has the same force and effect in all parts of Canada as if it had been originally issued or subsequently endorsed by a provincial court judge or other lawful authority having jurisdiction in the place where it is executed.

Peace officer may arrest
(3) If a peace officer believes on reasonable grounds that a warrant issued under subsection (1) is in force in respect of a young person, the peace officer may arrest the young person without the warrant at any place in Canada.

Requirement to bring before provincial director
(4) If a young person is arrested under subsection (3) and detained, the peace officer making the arrest shall cause the young person to be brought before the provincial director or a person designated by the provincial director

(a) if the provincial director or the designated person is available within a period of twenty-four hours after the young person is arrested, without unreasonable delay and in any event within that period; and
(b) if the provincial director or the designated person is not available within that period, as soon as possible.

Release or remand in custody
(5) If a young person is brought before the provincial director or a person designated by the provincial director under subsection (4), the provincial director or the designated person

(a) if not satisfied that there are reasonable grounds to believe that the young person is the young person in respect of whom the warrant referred to in subsection (1) was issued, shall release the young person; or
(b) if satisfied that there are reasonable grounds to believe that the young person is the young person in respect of whom the warrant referred to in subsection (1) was issued, may remand the young person in custody to await execution of the warrant, but if no warrant for the young person’s arrest is executed within a period of forty-eight hours after the time the young person is remanded in custody, the person in whose custody the young person then is shall release the young person.

Review by provincial director
108 Without delay after the remand to custody of a young person whose conditional supervision has been suspended under section 106, or without delay after being informed of the arrest of such a young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for a review under section 109.

Review by youth justice court
109 (1) If the case of a young person is referred to the youth justice court under section 108, the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard,

(a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach a condition of the conditional supervision, cancel the suspension of the conditional supervision; or
(b) if the court is satisfied on reasonable grounds that the young person 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 subsection (2).

Order
(2) On completion of a review under subsection (1), the youth justice court shall order

(a) the cancellation of the suspension of the conditional supervision, and when the court does so, the court may vary the conditions of the conditional supervision or impose new conditions;
(b) in a case other than a deferred custody and supervision order made under paragraph 42(2)(p), the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving, that the court considers appropriate, and when the court does so, the court shall order that the young person remain in custody; or
(c) in the case of a deferred custody and supervision order made under paragraph 42(2)(p), that the young person serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2)(n).

Custody and supervision order
(3) After a court has made a direction under paragraph (2)(c), the provisions of this Act applicable to orders under paragraph 42(2)(n) apply in respect of the deferred custody and supervision order.

Factors to be considered
(4) In making its decision under subsection (2), the court shall consider the length of time the young person has been subject to the order, whether the young person has previously contravened it, and the nature of the contravention, if any.

Reasons
(5) When a youth justice court makes an order under subsection (2), it shall state its reasons for the order in the record of the case and shall give, or cause to be given, to the young person in respect of whom the order was made, the counsel and a parent of the young person, the Attorney General and the provincial director,

(a) a copy of the order; and
(b) on request, a transcript or copy of the reasons for the order.

Report
(6) For the purposes of a review under subsection (1), the youth justice court shall require the provincial director to cause to be prepared, and to submit to the youth justice court, a report setting out any information of which the provincial director is aware that may be of assistance to the court.

Provisions apply
(7) Subsections 99(2) to (7) (provisions respecting reports and notice) and 105(6) (report for the purpose of setting conditions) apply, with any modifications that the circumstances require, in respect of a review under this section.

Provisions apply
(8) Section 101 (review of youth justice court decision) applies, with any modifications that the circumstances require, in respect of an order made under subsection (2).


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