Youth Pre-Sentence Reports

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Youth Pre-Sentence Reports

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

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

Medical or psychological assessment

34 (1) A youth justice court may, at any stage of proceedings against a young person, by order require that the young person be assessed by a qualified person who is required to report the results in writing to the court,

(a) with the consent of the young person and the prosecutor; or

(b) on its own motion or on application of the young person or the prosecutor, if the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(a) to (g) and

(i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability,

(ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

(iii) the young person is alleged to have committed a serious violent offence.

Purpose of assessment

(2) A youth justice court may make an order under subsection (1) in respect of a young person for the purpose of

(a) considering an application under section 33 (release from or detention in custody);

(b) making its decision on an application heard under section 71 (hearing — adult sentences);

(c) making or reviewing a youth sentence;

(d) considering an application under subsection 104(1) (continuation of custody);

(e) setting conditions under subsection 105(1) (conditional supervision);

(f) making an order under subsection 109(2) (conditional supervision); or

(g) authorizing disclosure under subsection 127(1) (information about a young person).

Custody for assessment

(3) Subject to subsections (4) and (6), for the purpose of an assessment under this section, a youth justice court may remand a young person to any custody that it directs for a period not exceeding thirty days.

Presumption against custodial remand

(4) A young person shall not be remanded in custody in accordance with an order made under subsection (1)

(a) the youth justice court is satisfied that

(i) on the evidence custody is necessary to conduct an assessment of the young person, or

(ii) on the evidence of a qualified person detention of the young person in custody is desirable to conduct the assessment of the young person, and the young person consents to custody; or

(b) the young person is required to be detained in custody in respect of any other matter or by virtue of any provision of the Criminal Code.

Report of qualified person in writing

(5) For the purposes of paragraph (4)(a), if the prosecutor and the young person agree, evidence of a qualified person may be received in the form of a report in writing.

Application to vary assessment order if circumstances change

(6) A youth justice court may, at any time while an order made under subsection (1) is in force, on cause being shown, vary the terms and conditions specified in the order in any manner that the court considers appropriate in the circumstances.

Disclosure of report

(7) When a youth justice court receives a report made in respect of a young person under subsection (1),

(a) the court shall, subject to subsection (9), 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) the court may cause a copy of the report to be given to

(i) 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, or

(ii) despite subsection 119(6) (restrictions respecting access to certain records), the provincial director, or the director of the provincial correctional facility for adults or the penitentiary at which the young person is serving a youth sentence, if, in the opinion of the court, withholding the report would jeopardize the safety of any person.

Cross-examination
(8) When a report is made in respect of a young person under subsection (1), 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 (9), on application to the youth justice court, be given an opportunity to cross-examine the person who made the report.
Non-disclosure in certain cases
(9) A youth justice court shall withhold all or part of a report made in respect of a young person under subsection (1) from a private prosecutor, if disclosure of the report or part, in the opinion of the court, is not necessary for the prosecution of the case and might be prejudicial to the young person.
Non-disclosure in certain cases
(10) A youth justice court shall withhold all or part of a report made in respect of a young person under subsection (1) from the young person, the young person’s parents or a private prosecutor if the court is satisfied, on the basis of the report or evidence given in the absence of the young person, parents or private prosecutor by the person who made the report, that disclosure of the report or part would seriously impair the treatment or recovery of the young person, or would be likely to endanger the life or safety of, or result in serious psychological harm to, another person.
Exception — interests of justice
(11) Despite subsection (10), the youth justice court may release all or part of the report to the young person, the young person’s parents or the private prosecutor if the court is of the opinion that the interests of justice make disclosure essential.
Report to be part of record
(12) A report made under subsection (1) forms part of the record of the case in respect of which it was requested.
Disclosure by qualified person
(13) Despite any other provision of this Act, a qualified person who is of the opinion that a young person held in detention or committed to custody is likely to endanger his or her own life or safety or to endanger the life of, or cause bodily harm to, another person may immediately so advise any person who has the care and custody of the young person whether or not the same information is contained in a report made under subsection (1).
(14) In this section, qualified person means a person duly qualified by provincial law to practice medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, if no such law exists, a person who is, in the opinion of the youth justice court, so qualified, and includes a person or a member of a class of persons designated by the lieutenant governor in council of a province or his or her delegate.

– YCJA

Admissibility of Section 34 of the YCJA

Statements not admissible against young person
147 (1) Subject to subsection (2), if a young person is assessed in accordance with an order made under subsection 34(1) (medical or psychological assessment), no statement or reference to a statement made by the young person during the course and for the purposes of the assessment to the person who conducts the assessment or to anyone acting under that person’s direction is admissible in evidence, without the consent of the young person, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

Exceptions

(2) A statement referred to in subsection (1) is admissible in evidence for the purposes of

(a) making a decision on an application heard under section 71 (hearing — adult sentences);

(b) determining whether the young person is unfit to stand trial;

(c) determining whether the balance of the mind of the young person was disturbed at the time of commission of the alleged offence, if the young person is a female person charged with an offence arising out of the death of her newly-born child;

(d) making or reviewing a sentence in respect of the young person;

(e) determining whether the young person was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code, if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

(f) challenging the credibility of a young person in any proceeding if the testimony of the young person is inconsistent in a material particular with a statement referred to in subsection (1) that the young person made previously;

(g) establishing the perjury of a young person who is charged with perjury in respect of a statement made in any proceeding;

(h) deciding an application for an order under subsection 104(1) (continuation of custody);

(i) setting the conditions under subsection 105(1) (conditional supervision);

(j) conducting a review under subsection 109(1) (review of decision); or

(k) deciding an application for a disclosure order under subsection 127(1) (information about a young person).

– YCJA