Sentencing Young Offenders: Difference between revisions

Revision as of 21:39, 24 January 2019

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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]

↑ R v B.(D.), [2008] SCC 25 2008 SCC 25 (CanLII), per Abella J 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.")
↑ see s. 142
↑ s. 142(2)
↑ see s. 42(2)

Purpose and Principles of the YCJA

See also: Principles and Purposes of Youth Sentencing

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

See Youth Pre-Sentence Reports

Extrajudicial Measures

See: Alternative Measures#Extrajudicial Measures Under the YCJA

Principles and Purpose of Sentencing

Principles and Purposes of Youth Sentencing

Factors of Sentencing

See also: Factors of Youth Sentencing

Available Dispositions

Dispositions for Young Offenders

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]

↑ R v JEO, 2013 SKCA 82 (CanLII), per Richards JA
↑ R v DS, 2008 ONCA 740 (CanLII), [2008] OJ No 4231, per Gillese JA, at para 26
R v DW, 2008 ONCA 268 (CanLII), per curiam, at para 3
R v MW, 2017 ONCA 22 (CanLII), per Epstein JA, at para 78
↑ R v TB, 2006 CanLII 4487 (ON CA), (2006) 206 CCC (3d) 405, per Lang JA at paras 19, 25
DS, supra

Adult Sentences

Adult Sentences for Young Offenders

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

Imprisonment for Life...

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

Young Offenders (Sentencing Cases)

@@ Line 90: / Line 90: @@
 ===Homicide===
 {{quotation|
-'''Imprisonment for Life'''<br>...<br>
+; Imprisonment for Life...<br>
-'''Persons under eighteen'''<br>
+; Persons under eighteen
 .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;