Principles and Purposes of Youth Sentencing

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General Principles

Section 3 of the YCJA under the header of "Declaration of Principle" states:

Policy for Canada with respect to young persons
3. (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by
(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,
(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and
(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
(i) rehabilitation and reintegration,
(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,
(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,
(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and
(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;
(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should
(i) reinforce respect for societal values,
(ii) encourage the repair of harm done to victims and the community,
(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and
(d) special considerations apply in respect of proceedings against young persons and, in particular,
(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,
(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,
(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and
(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

Act to be liberally construed
(2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1).
2002, c. 1, s. 3; 2012, c. 1, s. 168.


YCJA

Purpose
38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
Sentencing principles
(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conduct, and
(ii) to deter the young person from committing offences.

...
2002, c. 1, s. 38; 2012, c. 1, s. 172.


YCJA

Sentencing under the YCJA focuses on "the individual young person and how best to achieve the stated objectives of the [YCJA] in the particular circumstances."[1]

To achieve the purposes of sentencing, a youth sentence must be:

  • protect the public (s. 38(1))
  • "meaningful" (s. 3(1)(a)(iii) and 38(1))
  • "proportionate" to the gravity of the offence and offender's responsibility (s. 3(1)(b)(ii), 38(2)(c), and 38(2)(e)(iii))
  • hold the offender "accountable" (s. 3(2)(c) and 38(1))
  • "repair" the harm done to others and the community (s. 3(1)(c)(ii) and 38(2)(e)(iii))
  • promote "rehabilitation" (s. 3(1)(b)(i) and 38(2)(e)(ii))

Parliament's intention with the YCJA is to "reduce over-reliance on custodial sentences for young offenders."[2] It further intends to "prevent youth crime by addressing the underlying circumstances leading to the offending behaviour of a youth" and "promote rehabilitation of youthful offenders, while ensuring meaningful consequences for the offending behaviour."[3]

The term "meaningful consequences" requires an "individualistic judicial approach" to a youth sentence. The circumstances of the offender will be primary and the offence secondary in most cases.[4]

The objectives of the YCJA have the effect of favouring "rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity."[5]

Section 3(1)(b) stating that "young persons must be separate from that of adults" necessarily means that a youth cannot have a joint trial with an adult.[6]

  1. R v D.W., 2011 NLCA 21 (CanLII)
    see also R v A.H., 2011 NLCA 25 (CanLII)
    R v K.S., 2009 NLCA 46 (CanLII)
    R v E.W.A., 2009 NLCA 47 (CanLII)
  2. R v C.D., 2005 SCC 78 (CanLII), (2005), 203 CCC (3d) 449
  3. R v K.O., [2012] N.J. No. 291 at para 31
  4. R v C.(D.L.), 2003 CanLII 32877 (NL PC) at para 30
  5. R v S.J.L., 2009 SCC 14 (CanLII), [2009] 1 SCR 426
  6. SJL, ibid.

General Deterrence

One of the major distinctions of youth sentencing from adult sentencing is that there is no application of the principle of general deterrence.[1]

  1. R v AO, 2007 ONCA 144 (CanLII), [2007] O.J. No. 800 (Ont. C.A.) para 43

Accountability

The principle of accountability drives "drives the entire YCJA sentencing regime." [1]

Accountability is achieved by imposing "meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society"[2]

It is "concerned with the severity of the sentence in relation to the seriousness of the offence"."[3] This include considering whether "the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society".[4]

The principle of accountability under the YCJA is similar to the principle of retribution.[5]

One of the over-arching premises of the YCJA is that young offenders "can be rehabilitated and successfully reintegrated into society so they commit no further crimes".[6]

  1. R v .A.O., 2007 ONCA 144 (CanLII), [2007] O.J. No. 800 (C.A.) at para 59
  2. A.O. at para 42
  3. R v SNJS, 2013 BCCA 379 (CanLII) at para 29
  4. SNJS, ibid.
  5. AO, supra, at para 46 ("unlike vengeance,...[it] incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more")
  6. R v TPD, 2009 NSSC 332 (CanLII) at para 128

Purpose Prior to 2012 Amendments

Denunciation plays no role in sentencing of young persons.[1] Nor do general and specific deterrence.[2]

Consequently, a judge may not conclude that a sentence would fail to hold the offender accountable due to the sentence's failure to meet the objectives of denunciation and deterrence. [3]

In youth cases, the use of rehabilitation contributes to the protection of the public more than custodial sentences for the purpose of punishment.[4]

  1. R v C.T. (2005), 205 CCC (3d) 203 (Man. C.A.)
    see also R v J.S.R., 2012 ONCA 568 (CanLII), [2012] O.J. No. 4063 (C.A.))
  2. R v B.W.P.; R v B.V.N., 2006 SCC 27 (CanLII), [2006] 1 SCR 941
  3. R v J.S.R., [2009] O.J. No. 1662 (S.C.J.), at para 40, citing A.O. at para 48
  4. R v Z.P.-S., [200] OJ No 5115

See Also