Ancillary Orders for Young Persons
| This page was last substantively updated or reviewed January 2020. (Rev. # 99392) |
General Principles
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.
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))
Weapons Prohibitions
- Mandatory prohibition order
51 (1) Despite section 42 (youth sentences), when a young person is found guilty of an offence referred to in any of paragraphs 109(1)(a) to (d) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance during the period specified in the order as determined in accordance with subsection (2).
- Duration of prohibition order
(2) An order made under subsection (1) begins on the day on which the order is made and ends not earlier than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.
- Discretionary prohibition order
(3) Despite section 42 (youth sentences), where a young person is found guilty of an offence referred to in paragraph 110(1)(a) or (b) of the Criminal Code, the youth justice court shall, in addition to imposing a sentence under section 42 (youth sentences), consider whether it is desirable, in the interests of the safety of the young person or of any other person, to make an order prohibiting the young person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, and where the court decides that it is so desirable, the court shall so order.
- Duration of prohibition order
(4) An order made under subsection (3) against a young person begins on the day on which the order is made and ends not later than two years after the young person has completed the custodial portion of the sentence or, if the young person is not subject to custody, after the time the young person is found guilty of the offence.
- Reasons for the prohibition order
(5) When a youth justice court makes an order under this section, it shall state its reasons for making the order in the record of the case and shall give or cause to be given a copy of the order and, on request, a transcript or copy of the reasons to the young person against whom the order was made, the counsel and a parent of the young person and the provincial director.
- Reasons
(6) When the youth justice court does not make an order under subsection (3), or when the youth justice court does make such an order but does not prohibit the possession of everything referred to in that subsection, the youth justice court shall include in the record a statement of the youth justice court’s reasons.
- Application of Criminal Code
(7) Sections 113 to 117 (firearm prohibition orders) of the Criminal Code apply in respect of any order made under this section.
- Report
(8) Before making an order referred to in section 113 (lifting firearms order) of the Criminal Code in respect of a young person, the youth justice court may require the provincial director to cause to be prepared, and to submit to the youth justice court, a report on the young person.
Review
- Review of order made under section 51
52 (1) A youth justice court may, on application, review an order made under section 51 at any time after the end of the period set out in subsection 119(2)(period of access to records) that applies to the record of the offence that resulted in the order being made.
- Grounds
(2) In conducting a review under this section, the youth justice court shall take into account
- (a) the nature and circumstances of the offence in respect of which the order was made; and
- (b) the safety of the young person and of other persons.
- Decision of review
(3) When a youth justice court conducts a review under this section, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard,
- (a) confirm the order;
- (b) revoke the order; or
- (c) vary the order as it considers appropriate in the circumstances of the case.
- New order not to be more onerous
(4) No variation of an order made under paragraph (3)(c) may be more onerous than the order being reviewed.
- Application of provisions
(5) Subsections 59(3) to (5) apply, with any modifications that the circumstances require, in respect of a review under this section.
SOIRA
s. 490.011
[omitted (1)]
- Interpretation
(2) For the purpose of this section and sections 490.012 [SOIRA orders] to 490.032 [power of GIC to make regulations relating to SOIRA], a person who is convicted of, or found not criminally responsible on account of mental disorder for, a designated offence does not include a young person
- (a) within the meaning of subsection 2(1) of the Youth Criminal Justice Act unless they are given an adult sentence within the meaning of that subsection for the offence; or
- (b) within the meaning of subsection 2(1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, unless they are convicted of the offence in ordinary court within the meaning of that subsection.
2004, c. 10, s. 20; 2005, c. 43, s. 6; 2007, c. 5, s. 11; 2008, c. 6, s. 36; 2010, c. 3, s. 7, c. 17, s. 4; 2012, c. 1, ss. 31, 141; 2014, c. 25, s. 25; 2023, c. 28, s. 6.
[annotation(s) added]
DNA Orders
The standard to decline a DNA order is high. The "public interest is clearly and substantially outweighed by the individual’s privacy and security interests"[1]
When applying the test for a DNA order upon a young person, the analysis must be 'through the lens of the applicable youth criminal justice legislation".[2]
- ↑ R v B.R., 2011 NLCA 23 (CanLII) at para 31
- ↑
RC, 2005 SCC 61 (CanLII) *"In determining whether the young person has established that the public interest in the protection of society and the proper administration of justice is clearly and substantially inferior to his or her privacy and security interests, the sentencing judge must examine both sides of the equation through the lens of the applicable youth criminal justice legislation.")