Dispositions for Young Offenders
Section 42(2) sets out all youth sentences available to a sentencing judge:
- reprimand (42(2)(a))
- absolute discharge (42(2)(b))
- conditional discharge (42(2)(c))
- fine (42(2)(d))
- damages (42(2)(e))
- restitution (42(2)(f), (g))
- other compensation such as personal service (42(2)(h))
- community service (42(2)(i))
- prohibition, seizure or forfeiture orders, (42(2)(j))
- probation of two years or less (42(2)(k))
- intensive support or supervision program (42(2)(l))
- non-residential programs of no more than 6 months (42(2)(m))
- custody and supervision order (42(2)(n))
- custody and supervision order followed by a conditional supervision order (42(2)(o) and (q))
- deferred custody and supervision order (42(2)(p))
- intensive rehabilitative custody and supervision order (42(2)(r))
- any other reasonable and ancillary conditions (42(2)(s))
Section 42 permits a discharge:
(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:
- (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;
- (c) by order direct that the young person be discharged on any conditions that the court considers appropriate and may require the young person to report to and be supervised by the provincial director;
The standard applied for discharges of youths is different from that applied to adults. Section 3 and 38 of the YCJA are to be applied.
It is an error of law to apply the two part test for a discharge that is applied to adult offenders under s. 730 of the Code.
The primary difference between a youth discharge and youth probation is the effect that it has on the youth's record. A probation record will be accessible for longer than a discharge record under s. 119 of the YCJA. The difference does not necessarily equate to being more lenient.
A youth discharge is different from an adult discharge. The main feature of an adult discharge being an absence of a criminal record is of less importance to a youth.
The difference between youth discharge and youth probation is "minuscule" and is hardly any more "lenient". It is the duration that determines the "strictness/leniency of the sanction and not the vehicle" that is used.
A probationary term is more suitable where the judge wishes that the youth be required to "keep the peace and be of good behaviour" or where future reporting is required.
A sentence of probation and conditional discharge are inconsistent with each other and cannot both be applied.
R v RCM, 2009 ABPC 130 (CanLII), at para 26
Deferred custody and supervision order
(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if
- (a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and
- (b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.
A deferred custody order is similar to that of an adult conditional sentence in that it permits rehabiliation outside of true custody.
Probation cannot run concurrently to a deferred custody order.
Deferred custody cannot be ordered where full custody is not an available option.
- R v A. (E.S.) (2003), 2003 CarswellAlta 628 (ABPC)
- R v R. (J.R.) (2003), 2003 CarswellBC 3242 (B.C. Prov. Ct.)
- R v J. (C.D.) (2005), 2005 CarswellAlta 1309 (Alta. C.A.)
Intense Rehabilitative Custody and Supervision Order
Section 42(2)(r) permits the court to order an Intensive Rehabilitative Custody and Supervision Order (IRCS Order).
Section 42(7)(a) sets the prerequisites for a IRCS order:
Intensive rehabilitative custody and supervision order
(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(r) in respect of a young person only if
- (a) either
- (i) the young person has been found guilty of a serious violent offence, or
- (ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;
- (b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;
- (c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence; and
- (d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate.
...[(8) to (17)]...
Custody and Supervision Order
Where a fine or other payment is ordered
54. (1) The youth justice court shall, in imposing a fine under paragraph 42(2)(d) or in making an order under paragraph 42(2)(e) or (g), have regard to the present and future means of the young person to pay.
Discharge of fine or surcharge
(2) A young person on whom a fine is imposed under paragraph 42(2)(d), including any percentage of a fine imposed under subsection 53(1), or on whom a victim fine surcharge is imposed under subsection 53(2), may discharge the fine or surcharge in whole or in part by earning credits for work performed in a program established for that purpose
- (a) by the lieutenant governor in council of the province in which the fine or surcharge was imposed; or
- (b) by the lieutenant governor in council of the province in which the young person resides, if an appropriate agreement is in effect between the government of that province and the government of the province in which the fine or surcharge was imposed.
The time to pay may be extended under s. 54(10) of the YCJA.
Community and Personal Service
Orders under paragraph 42(2)(h), (i) or (m)
(7) No order may be made under paragraph 42(2)(h), (i) or (m) unless the youth justice court is satisfied that
- (a) the young person against whom the order is made is a suitable candidate for such an order; and
- (b) the order does not interfere with the normal hours of work or education of the young person.
Duration of order for service
(8) No order may be made under paragraph 42(2)(h) or (i) to perform personal or community services unless those services can be completed in two hundred and forty hours or less and within twelve months after the date of the order.
Community service order
(9) No order may be made under paragraph 42(2)(i) unless
- (a) the community service to be performed is part of a program that is approved by the provincial director; or
- (b) the youth justice court is satisfied that the person or organization for whom the community service is to be performed has agreed to its performance.
Under s. 51(1), weapons prohibition order under s. 109 also applies to young offenders. The duration of order is 2 years starting at the end of custody or upon issuing a non-custody sentence.(s. 51(2))