Sentencing Young Offenders

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General Principles

The YCJA creates a separate legal system for youths. The reason for this is that young people are particularly vulnerable, less mature, and have a reduced capacity for moral judgment. Accordingly, they are presumed to have a diminished moral blameworthiness and culpability.[1] Part IV of the YCJA (s. 41 to 82) addresses sentencing of young offenders.

Relationship with the Criminal Code
The relationship of the YCJA and the Criminal Code is addressed in ss. 140 to 142. The Criminal Code applies equally "except to the extent that it is inconsistent with or excluded by this Act" (s. 140).

Part XXVII of the Code regarding procedure for summary conviction offences applies to prosecutions under the YCJA except where inconsistent with the YCJA.[2] Indictable offences are to be prosecuted under the procedure of indictable offences.[3]

The consequence of this is that the sentencing options are significantly different from the adult options of sentence as the YCJA explicitly outlines the available sentences for all young offenders.[4]

  1. R v B.(D.), [2008] SCC 25 2008 SCC 25 (CanLII) at para 45 ("...the approach to the sentencing of young persons is animated by the principle that there is a presumption of diminished moral culpability to which they are entitled.")
  2. see s. 142
  3. s. 142(2)
  4. see s. 42(2)

Purpose and Principles of the YCJA

Section 3 sets out the purpose and principles of the Act:

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

Jurisdiction

See Jurisdiction of the Courts

History

From 1908 to 1984 youth sentencing was governed by the Juvenile Delinquents Act. This Act was replaced by Young Offenders Act in 1984 and remained in force until 2003. Finally, in 2003 the Youth Criminal Justice Act was brought into force.

Protection of Identity

See also: Publication Bans Relating to Youth Prosecutions

Under s. 110 and 129 of the YCJA, any information that would identify an offender cannot be published or released to the public at any time. Likewise, under s. 111 and 129, any information that would identify a victim or witness who is a young person cannot be published or released to the public at any time.

If either s. 110 or 111 is violated, the offending person may be liable under s. 138 either on summary conviction or for an indictable offence with a maximum penalty of two years in prison.

Procedure

Where a young person pleads guilty, the judge must be satisfied under s. 36(1) that "the facts support the charge" before the judge can find the accused guilty.

Where the facts do not support the charge, then under s. 36(2), the judge must set the matter down for trial.

Youth Pre-Sentence Report

Extrajudicial Measures

See: Alternative_Measures#Extrajudicial Measures Under the YCJA

Principles and Purpose of Sentencing

Factors of Sentencing

38.
...
Factors to be considered
(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;
(b) the harm done to victims and whether it was intentional or reasonably foreseeable;
(c) any reparation made by the young person to the victim or the community;
(d) the time spent in detention by the young person as a result of the offence;
(e) the previous findings of guilt of the young person; and
(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

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


YCJA

More restrictive sentences are required where:[1]

  • The manifestation of unnecessary violence[2]
  • Where they involved a violent offence committed to fulfill a desire to engage in violent behaviour[3]
  • Where the offence is associated with weapons[4]
  • Where the offence is conducted without regard for the consequences of the offence[5]
  • Where the offence is part of a series of offences which have escalating violence and severity[6]
  • Where the offence was planned by the youth and involved an intent to harm.[7]

A offence that occurs while being on bail is aggravating.[8]

The absence of a criminal record is mitigating.[9]

The offender's responsibility will be reduced where the act occurs in unusual circumstances, out of character, or was the product of impulsivity.[10]

The court must take into account the offender's relative low level of maturity, poor education, absence of adult guidance and history of disadvantage.[11]

Remand Credit
Section 38(3)(d) does not prevent the imposition of a maximum penalty despite the presence of reman credit.[12]

  1. R v RM, 2014 MBPC 18 (CanLII), at para 62 -- see for overview of principles
  2. R v CWW, 2006 ABPC 191 (CanLII), at paras 20, 44 and 403
    R v MD, 2008 ONCJ 310 (CanLII), at paras 47 and 77
    R v Lights, 2007 ONCJ 173 (CanLII), at paras 49 and 75
    R v Smith, 2009 NSCA 8 (CanLII), at paras 40 and 41
  3. R v Smith, 2009 NSCA 8 (CanLII), paras 40 and 41
  4. R v CWW, supra at paras 20 and 44
    R v MD, supra at para 47
    R v BCF, 2008 SKPC 98 (CanLII), at paras 29 and 79
    R v JSR, 2009 CanLII 18884 (ON SC), 2009 O.J. No. 1662 (Ont. S.C.J.) at paras 63 and 64
  5. R v P(DD), 2007 BCCA 206 (CanLII), at paras 64 and 239
    R v MD, supra at para 47
  6. R v MD, supra at paras 19 and 47
    R v CRB, 2009 SKQB 176 (CanLII), at para 36
  7. R v BCF, supra, at para 30
    R v SRB, 2009 ABCA 45 (CanLII), at paras 12-16
  8. R v BKTS, 2009 MBQB 56 (CanLII)
  9. R v AJD, 2009 NSSC 56 (CanLII), at para 53
  10. R v TWT, 2008 ABCA 306 (CanLII), at para 8
    R v AJD, supra at para 51
  11. R v CK, 2006 ONCJ 283 (CanLII), at paras 47 and 48
    R v P(DD), supra at para 65
    R v TWT, supra at para 8
  12. R v RRJ, 2009 BCCA 580 (CanLII)

Available Dispositions

Remand Credit

A young offender should be given 1.5:1 credit for remand time.[1] However, the ultimate decision on treating pre-sentence custody is discretionary, and can give no credit if appropriate in the circumstances.[2]

Section 38(3)(d) of the YCJA states that "In determining a youth sentence, the youth justice court shall take into account ... the time spent in detention as a result of the offence”. This requires that the judge reduce the potential maximum sentence by at least the number of actual days spent on remand.[3]

  1. R v JEO, 2013 SKCA 82 (CanLII)
  2. R v DS, 2008 ONCA 740 (CanLII), [2008] O.J. No. 4231 at para 26
    R v DW, 2008 ONCA 268 (CanLII) at para 3
    R v MW, 2017 ONCA 22 (CanLII) at para 78
  3. R v T.B., 2006 CanLII 4487 (ON CA), (2006) 206 CCC (3d) 405 at paras 19, 25
    DS, supra

Adult Sentences

Ancillary Orders

See also: Ancillary Orders

It is worth noting that the language of the provisions relating to SOIRA indicates that it does not apply to young offenders. DNA orders however do apply in the same way that it does to adults.

Specific Offences

Homicide

Persons under eighteen
745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served

(a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence;
(b) ten years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence; and
(c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.

1995, c. 22, ss. 6, 21.


CCC

Review of Sentences

A non-custody sentence can be reviewed after 6 months or earlier is granted leave by the court. (s. 59(1))

A custody sentence can be reviewed after 1 year.(s. 94)

Sentencing Digests

See Also