Youth Pre-Sentence Reports

This page was last substantively updated or reviewed February 2019. (Rev. # 95950)

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Youth Pre-Sentence Reports

PART 4 Sentencing

Purpose and Principles

39
[omitted (1), (2), (3), (4) and (5)]

Pre-sentence report

(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.

Report dispensed with

(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.
[omitted (8) and (9)]
2002, c. 1, s. 39; 2012, c. 1, s. 173; 2019, c. 25, s. 372.

– YCJA (CanLII), (DOJ)

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Section 40 of the Youth Criminal Justice Act provides for Pre-sentence Reports for young offenders.

Pre-sentence report

40 (1) Before imposing sentence on a young person found guilty of an offence, a youth justice court

(a) shall, if it is required under this Act to consider a pre-sentence report before making an order or a sentence in respect of a young person, and

(b) may, if it considers it advisable,

require the provincial director to cause to be prepared a pre-sentence report in respect of the young person and to submit the report to the court.

Contents of report

(2) A pre-sentence report made in respect of a young person shall, subject to subsection (3), be in writing and shall include the following, to the extent that it is relevant to the purpose and principles of sentencing set out in section 38 and to the restrictions on custody set out in section 39:

(a) the results of an interview with the young person and, if reasonably possible, the parents of the young person and, if appropriate and reasonably possible, members of the young person’s extended family;

(b) the results of an interview with the victim in the case, if applicable and reasonably possible;

(c) the recommendations resulting from any conference referred to in section 41;

(d) any information that is applicable to the case, including

(i) the age, maturity, character, behaviour and attitude of the young person and his or her willingness to make amends,

(ii) any plans put forward by the young person to change his or her conduct or to participate in activities or undertake measures to improve himself or herself,

(iii) subject to subsection 119(2) (period of access to records), the history of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt for offences under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or under this or any other Act of Parliament or any regulation made under it, the history of community or other services rendered to the young person with respect to those findings and the response of the young person to previous sentences or dispositions and to services rendered to him or her,

(iv) subject to subsection 119(2) (period of access to records), the history of alternative measures under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or extrajudicial sanctions used to deal with the young person and the response of the young person to those measures or sanctions,

(v) the availability and appropriateness of community services and facilities for young persons and the willingness of the young person to avail himself or herself of those services or facilities,

(vi) the relationship between the young person and the young person’s parents and the degree of control and influence of the parents over the young person and, if appropriate and reasonably possible, the relationship between the young person and the young person’s extended family and the degree of control and influence of the young person’s extended family over the young person, and

(vii) the school attendance and performance record and the employment record of the young person;

(e) any information that may assist the court in determining under subsection 39(2) whether there is an alternative to custody; and

(f) any information that the provincial director considers relevant, including any recommendation that the provincial director considers appropriate.

Oral report with leave

(3) If a pre-sentence report cannot reasonably be committed to writing, it may, with leave of the youth justice court, be submitted orally in court.

Report forms part of record

(4) A pre-sentence report shall form part of the record of the case in respect of which it was requested.

Copies of pre-sentence report

(5) If a pre-sentence report made in respect of a young person is submitted to a youth justice court in writing, the court

(a) shall, subject to subsection (7), cause a copy of the report to be given to

(i) the young person,

(ii) any parent of the young person who is in attendance at the proceedings against the young person,

(iii) any counsel representing the young person, and

(iv) the prosecutor; and

(b) may cause a copy of the report to be given to a parent of the young person who is not in attendance at the proceedings if the parent is, in the opinion of the court, taking an active interest in the proceedings.

Cross-examination

(6) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the young person, his or her counsel or the adult assisting the young person under subsection 25(7) and the prosecutor shall, subject to subsection (7), on application to the court, be given the opportunity to cross-examine the person who made the report.

Report may be withheld from private prosecutor

(7) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the court may, when the prosecutor is a private prosecutor and disclosure of all or part of the report to the prosecutor might, in the opinion of the court, be prejudicial to the young person and is not, in the opinion of the court, necessary for the prosecution of the case against the young person,

(a) withhold the report or part from the prosecutor, if the report is submitted in writing; or

(b) exclude the prosecutor from the court during the submission of the report or part, if the report is submitted orally in court.

Report disclosed to other persons

(8) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the court

(a) shall, on request, cause a copy or a transcript of the report to be supplied to

(i) any court that is dealing with matters relating to the young person, and

(ii) any youth worker to whom the young person’s case has been assigned; and

(b) may, on request, cause a copy or a transcript of all or part of the report to be supplied to any person not otherwise authorized under this section to receive a copy or a transcript of the report if, in the opinion of the court, the person has a valid interest in the proceedings.

Disclosure by the provincial director

(9) A provincial director who submits a pre-sentence report made in respect of a young person to a youth justice court may make all or part of the report available to any person in whose custody or under whose supervision the young person is placed or to any other person who is directly assisting in the care or treatment of the young person.

Inadmissibility of statements

(10) No statement made by a young person in the course of the preparation of a pre-sentence report in respect of the young person is admissible in evidence against any young person in civil or criminal proceedings except those under section 42 (youth sentences), 59 (review of non-custodial sentence) or 71 (hearing — adult sentences) or any of sections 94 to 96 (reviews and other proceedings related to custodial sentences).

– YCJA (CanLII), (DOJ)

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Informed consent of the youth is not required for the offender to undergo a risk assessment ordered by the director under s. 40(2)(f).

Pre-Sentence Assessments

• Mental Disorder in Youth Justice