Criminal Law Notebook

Principles and Purposes of Youth Sentencing

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General Principles

Section 3 of the YCJA under the header of "Declaration of Principle" states:

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

Note up: 3(1) and (2)

Purpose

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;
(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;
(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;
(e) subject to paragraph (c), the sentence must
(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),
(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and
(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and
(f) subject to paragraph (c), the sentence may have the following objectives:
(i) to denounce unlawful conduct, and
(ii) to deter the young person from committing offences.

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

– YCJA

Note up: 38(1) and (2)

The various objectives listed in s. 3 are to be interpreted to "work together coherently and harmoniously".[1]

There is no legal significance in the fact that protection of the public as being the first in the list of objectives.[2]

Sentencing under the YCJA focuses on "the individual young person and how best to achieve the stated objectives of the [YCJA] in the particular circumstances."[3]

To achieve the purposes of sentencing, a youth sentence must be:

  • protect the public (s. 38(1))
  • "meaningful" (s. 3(1)(a)(iii) and 38(1))
  • "proportionate" to the gravity of the offence and offender's responsibility (s. 3(1)(b)(ii), 38(2)(c), and 38(2)(e)(iii))
  • hold the offender "accountable" (s. 3(2)(c) and 38(1))
  • "repair" the harm done to others and the community (s. 3(1)(c)(ii) and 38(2)(e)(iii))
  • promote "rehabilitation" (s. 3(1)(b)(i) and 38(2)(e)(ii))
Purpose of Introducing YCJA

Parliament's intention with the YCJA is to "reduce over-reliance on custodial sentences for young offenders."[4] It further intends to "prevent youth crime by addressing the underlying circumstances leading to the offending behaviour of a youth" and "promote rehabilitation of youthful offenders, while ensuring meaningful consequences for the offending behaviour."[5]

The objectives of the YCJA have the effect of favouring "rehabilitation, reintegration and the principle of a fair and proportionate accountability that is consistent with the young person’s reduced level of maturity."[6]

The YCJA relies on the premise that "with some exception, young persons who commit crimes can be rehabilitated and successfully reintegrated into society so they commit no further crimes".[7]

Difference from Adult Offenders

Section 3(1)(b) stating that "young persons must be separate from that of adults" necessarily means that a youth cannot have a joint trial with an adult.[8]

Focus on Sentencing

The focus on sentencing under the YCJA should be upon "balancing conflicting principles to arrive at a sentence tailored to the individualized circumstances" of the offender.[9]

  1. ↑ R v JMO, 2017 MBCA 59 (CanLII), per Mainella JA, at para 46
  2. ↑ JMO, ibid., at para 46
  3. ↑ R v DW, 2011 NLCA 21 (CanLII), per Welsh JA
    see also R v AH, 2011 NLCA 25 (CanLII), per Welsh JA
    R v KS, 2009 NLCA 46 (CanLII), per Barry JA
    R v EWA, 2009 NLCA 47 (CanLII), per Barry JA
  4. ↑ R v CD, 2005 SCC 78 (CanLII), (2005), 203 CCC (3d) 449, per Bastarache J
  5. ↑ R v KO, [2012] N.J. No. 291, 2012 NLCA 55 (CanLII), per Wells JA, at para 31
  6. ↑ R v SJL, 2009 SCC 14 (CanLII), [2009] 1 SCR 426, per Deschamps J
  7. ↑ R v TPD, 2009 NSSC 332 (CanLII), [2009] N.S.J. No. 556, per Hood J, at para 128
  8. ↑ SJL, ibid.
  9. ↑ R v JMO, 2017 MBCA 59 (CanLII), per Mainella JA, at para 47

Protection of the Public

Section 3 states that the "youth criminal justice system is intended to protect the public".[1]

The objective of sentencing under s. 42 of YCJA is to "contribut[e] to the long-term protection of the public".[2]

The objective of protecting the public found within s. 38(1) is "not as an immediate objective of sentencing, but rather as the long-term effect of a successful youth sentence".[3]

The YCJA "encourages an approach that takes into account the reality that public safety is best served by dealing with problems while there is still time".[4]

  1. ↑ see s. 3 YCJA
  2. ↑ see s. 38
  3. ↑ R v BWP, 2006 SCC 27 (CanLII), per Charron J, at para 31
  4. ↑ BWP, ibid., at para 38
    R v Smith, [2010] NSJ No 461, 2010 NSPC 53 (CanLII), per Campbell J, at para 110

General Deterrence

One of the major distinctions of youth sentencing from adult sentencing is that there is no application of the principle of general deterrence.[1]

  1. ↑ R v AO, 2007 ONCA 144 (CanLII), [2007] OJ No 800 (Ont. C.A.), per curiam, at para 43
    R v BMS, 2016 NSCA 35 (CanLII), per curiam, at para 31
    R v S(SNJ), 2013 BCCA 379 (CanLII), per Garson J, at to 30 paras 27 to 30{{{3}}}

Denunciation and Specific Deterrence

The application of the objectives of denunciation and specific deterrence are a matter of discretion and are not necesary in every case.[1] The relevancy of the specific deterrence found in s. 38(2)(f) is to focus only on those "very narrow set of violent and/or repeat offender".[2]

The addition in 2012 of s. 38(2)(f) does not signal a departure from the overall scheme of the YCJA.[3] Instead, the amendments represent a "philosophical shift... but not a tectonic one for sentencing non-violent and non-repeat offenders".[4]

  1. ↑ R v JMO, 2017 MBCA 59 (CanLII), per Mainella JA, at para 58
    R v TRK, 2016 MBCA 14 (CanLII), per LeMaistre JA, at to 16 paras 15 to 16{{{3}}}
  2. ↑ JMO, supra, at para 58
  3. ↑ JMO, supra, at para 58
  4. ↑ JMO, supra, at para 48

Accountability and Meaningful Consequences

The principle of accountability drives "drives the entire YCJA sentencing regime." [1]

The principle must be "fair and proportionate" and "consistent with the greater dependency of young persons and their reduced level of maturity".[2]

Accountability guides the purpose of measures that are necessary for a young person consisting of:

3.
...

(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

...

– YCJA

Note up: 3

Accountability is achieved by imposing "meaningful consequences for the offender and sanctions that promote his or her rehabilitation and reintegration into society".[3]

Accountability does not include "accountability to society in any larger sense or any notion of deterrence."[4] Nor is is "synonymous with rehabilitation and reintegration".[5]

Youth are not "less accountable" than adults but are rather "differently accountable".[6]

It is "concerned with the severity of the sentence in relation to the seriousness of the offence"."[7] This include considering whether "the sentence meets the goal of ensuring the person is rehabilitated and reintegrated into society".[8]

The principle of accountability under the YCJA is equivalent to the principle of retribution.[9]

One of the over-arching premises of the YCJA is that young offenders "can be rehabilitated and successfully reintegrated into society so they commit no further crimes".[10]

An accountable sentence is one that reflects "the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct".[11] This normative analysis "of an offender's behaviour necessarily requires the court to consider societal values”.[12]

Accountability requires that the sentence be long enough to reflect the seriousness of the offence and the offender’s role in it, as well as to provide reasonable assurance of the offender’s rehabilitation to the point where he/she can be safely reintegrated into society".[13]

  1. ↑ R v AO, 2007 ONCA 144 (CanLII), [2007] OJ No 800 (C.A.), per curiam, at para 59
  2. ↑ R v RD, 2015 NSPC 83 (CanLII), per Derrick J, at para 39 citing s. 3(1)(b)(ii)
  3. ↑ AO, supra, at para 42
    R v JMO, 2017 MBCA 59 (CanLII), per Mainella JA, at para 44 ("This is to be done by holding young persons accountable through proportionate measures, promoting their rehabilitation and reintegration, and referring them to local resources to address the circumstances underlying their offending behaviour.")
  4. ↑ AO, ibid.
  5. ↑ AO, ibid.
  6. ↑ RD, ibid., at para 54
    R v DB, 2008 SCC 25 (CanLII), per Abella J, at para 93
  7. ↑ R v SNJS, 2013 BCCA 379 (CanLII), per Garson J, at para 29
  8. ↑ SNJS, ibid.
  9. ↑ AO, supra, at para 46 ("unlike vengeance,...[it] incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more")
    RD, supra, at para 39
  10. ↑ R v TPD, 2009 NSSC 332 (CanLII), per Hood J, at para 128
  11. ↑ AO, supra
  12. ↑ AO, supra
  13. ↑ R v TM, 2017 BCSC 862 (CanLII), per Watchuk J, at para 72

Proportionality

See also: Proportionality

Proportionality is a objective for youth sentencing under s. 38(2)(c).[1] This requires that the sentence be "proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence".[2]

If the principles outline any form of hierarchy, the principle of proportionality "is at the top".[3]

Least Restrictive

The proportionality principle is subject to the requirement that the sentence be the least restrictive possible.[4]

  1. ↑ R v RD, 2015 NSPC 83 (CanLII), per Derrick J, at para 36
  2. ↑ R v DB, 2015 NSPC 82 (CanLII), per Derrick J, at para 30
  3. ↑ R v SNJS, [2013] BCJ 1847, 2013 BCCA 379 (CanLII), per Garson JA, at para 27 ("...to the extent there is any hierarchy within the principles laid down in s. 38(2) [of the YCJA], it is (c) [the proportionality principle] which is at the top of that hierarchy...")
    RD, supra, at para 42
  4. ↑ DB, supra, at para 30
    see s. 38(2)(e)(i) YCJA

Meaningful Consequences

The term "meaningful consequences" requires an "individualistic judicial approach" to a youth sentence. The circumstances of the offender will be primary and the offence secondary in most cases.[1]

  1. ↑ R v DLC, 2003 CanLII 32877 (NL PC), per Gorman J, at para 30

Presumption of Diminished Moral Blameworthiness

See also: Principles of Fundamental Justice

Under s. 7 of the Charter young offenders are entitled to the presumption of diminished moral blameworthiness.

This presumption is as a consequence of their age, including the "heightened vulnerability, immaturity, and reduced capacity for moral judgment".[1]

The Crown bears the burden of rebutting the presumption of diminished moral blameworthiness when applying for an adult sentence.[2]

The standard of proof is not one of balance of probabilities or beyond a reasonable doubt.[3] The Court need only to "satisfied' after weighing and balancing the relevant considerations.[4]

  1. ↑ R v DB, 2008 SCC 25 (CanLII), per Abella J, at para 41
  2. ↑ DB, ibid.{{atsL|1wxc8|75| to 82, 91 to 94
  3. ↑ R v TM, 2017 BCSC 862 (CanLII), per Watchuk J, at para 61
  4. ↑ TM, ibid., at para 61

Rehabilitation and Reintegration

Section 38 states the "purpose of sentencing ... [includes] promot[ing] his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. " This is also one of the key policies listed in s. 3(1)(b)(i) of the YCJA.

Promoting a Sense of Responsibility

Section 38(2)(e)(iii) of the YCJA states the sentence must "promote a sense of responsibility in the young person".

Acknowledgement of Harm

Section 38(2)(e)(iii) of the YCJA states the sentence must "promote ... an acknowledgement of the harm done to victims and the community".

Repair the Harm Done

Section 38(2)(c)(ii) requires that subject to proportionality, the sentence should "encourage the repair of harm done to victims and the community".


Purpose Prior to 2012 Amendments

See Also

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