Dispositions for Young Offenders
| This page was last substantively updated or reviewed January 2020. (Rev. # 95405) |
General Principles
Section 42(2) sets out all youth sentences available to a sentencing judge:
- reprimand (42(2)(a))
- absolute discharge (42(2)(b))
- conditional discharge (42(2)(c))
- fine (42(2)(d))
- damages (42(2)(e))
- restitution (42(2)(f), (g))
- other compensation such as personal service (42(2)(h))
- community service (42(2)(i))
- prohibition, seizure or forfeiture orders, (42(2)(j))
- probation of two years or less (42(2)(k))
- intensive support or supervision program (42(2)(l))
- non-residential programs of no more than 6 months (42(2)(m))
- custody and supervision order (42(2)(n))
- custody and supervision order followed by a conditional supervision order (42(2)(o) and (q))
- deferred custody and supervision order (42(2)(p))
- intensive rehabilitative custody and supervision order (42(2)(r))
- any other reasonable and ancillary conditions (42(2)(s))
The section specifically states:
42
[omitted (1)]
- Youth sentence
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
- (a) reprimand the young person;
- (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;
- (c) by order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2)(e.1) and may require the young person to report to and be supervised by the provincial director;
- (d) impose on the young person a fine not exceeding $1,000 to be paid at the time and on the terms that the court may fix;
- (e) order the young person to pay to any other person at the times and on the terms that the court may fix an amount by way of compensation for loss of or damage to property or for loss of income or support, or an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, for personal injury arising from the commission of the offence if the value is readily ascertainable, but no order shall be made for other damages in the Province of Quebec or for general damages in any other province;
- (f) order the young person to make restitution to any other person of any property obtained by the young person as a result of the commission of the offence within the time that the court may fix, if the property is owned by the other person or was, at the time of the offence, in his or her lawful possession;
- (g) if property obtained as a result of the commission of the offence has been sold to an innocent purchaser, where restitution of the property to its owner or any other person has been made or ordered, order the young person to pay the purchaser, at the time and on the terms that the court may fix, an amount not exceeding the amount paid by the purchaser for the property;
- (h) subject to section 54, order the young person to compensate any person in kind or by way of personal services at the time and on the terms that the court may fix for any loss, damage or injury suffered by that person in respect of which an order may be made under paragraph (e) or (g);
- (i) subject to section 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court;
- (j) subject to section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence, other than an order under section 161 of the Criminal Code;
- (k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;
- (l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director;
- (m) subject to subsection (3) (agreement of provincial director) and section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months;
- (n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;
- (o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1)(continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;
- (p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate;
- (q) order the young person to serve a sentence not to exceed
- (i) in the case of first degree murder, ten years comprised of
- (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and
- (B) a placement under conditional supervision to be served in the community in accordance with section 105, and
- (ii) in the case of second degree murder, seven years comprised of
- (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and
- (B) a placement under conditional supervision to be served in the community in accordance with section 105;
- (r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person
- (i) that is for a specified period that must not exceed
- (A) two years from the date of committal, or
- (B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,
- and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105,
- (ii) that is for a specified period that must not exceed, in the case of first degree murder, ten years from the date of committal, comprising
- (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed six years from the date of committal, and
- (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105, and
- (iii) that is for a specified period that must not exceed, in the case of second degree murder, seven years from the date of committal, comprising
- (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed four years from the date of committal, and
- (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105; and
- (s) impose on the young person, in accordance with paragraph 38(2)(e.1), any other conditions that the court considers appropriate.
[omitted (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
Reprimand
Section 42 permits a reprimand:
42
[omitted (1)]
- Youth sentence
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
- (a) reprimand the young person;
- [omitted (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r) and (s)]
[omitted (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
Discharge
Section 42 permits two types of discharge, an absolute discharge and a conditional discharge:
42
[omitted (1)]
- Youth sentence
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
- [omitted (a)]
- (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;
- (c) by order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2)(e.1) and may require the young person to report to and be supervised by the provincial director;
- [omitted (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r) and (s)]
[omitted (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
The standard applied for discharges of youths is different from that applied to adults. Section 3 and 38 of the YCJA are to be applied.
Conditional Discharge
It is an error of law to apply the two part test for a discharge that is applied to adult offenders under s. 730 of the Code.[1]
Under the YCJA there is no mechanism under which a "conviction" is entered.[2]
There is some suggestions that both best interests of the young person and the public interest are not statutory requirements for conditional discharges.[3]
The primary difference between a youth discharge and youth probation is the effect that it has on the youth's record.[4] A probation record will be accessible for longer than a discharge record under s. 119 of the YCJA.[5] The difference does not necessarily equate to being more lenient.[6]
A youth discharge is different from an adult discharge. The main feature of an adult discharge being an absence of a criminal record is of less importance to a youth.[7]
The difference between youth discharge and youth probation is "minuscule" and is hardly any more "lenient". It is the duration that determines the "strictness/leniency of the sanction and not the vehicle" that is used.[8]
A probationary term is more suitable where the judge wishes that the youth be required to "keep the peace and be of good behaviour" or where future reporting is required.[9]
All offenders receive a youth record whether it is a discharge or a probation order.[10]
Under the test for a discharge, the test will "almost always be met."[11] This is largely due to the fact that there is little public interest in the "record access period."[12]
Leniency of the sentence is determined by the length of the terms and conditions, rather than the difference between probation and discharges.[13]
- Effect on Youth Employment
A youth conditional discharge does not protect a young person's career aspirations any more effectively than a probation order.[14]
- Terms
There are no mandatory conditions to a conditional discharge unlike a probation order.[15]
- ↑
R v CSW, 2004 ABCA 352 (CanLII), 357 AR 232, per Brooker JA (3:0)
- ↑ Bloomfield, Youth Criminal Justice Act Manual
- ↑
R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J, at para 13(item ii)
R v SMR, 2004 SKPC 131 (CanLII), 191 CCC (3d) 524, per Whelan J, at para 36
R v CSW, 2004 ABCA 352 (CanLII), 357 AR 232, per Brooker JA, at paras 4 to 5
R v RP, 2004 ONCJ 190 (CanLII), per Duncan J, at para 11 and footnote #3
cf. LSJPA, 2006 QCCQ 6900 (CanLII), QJ 5217, per Lefebvre J, at paras 41 to 42 and 65
- ↑
R v BWP, 2006 SCC 27 (CanLII), [2006] 1 SCR 941, per Charron J (7:0)
R v PJS, 2008 NSCA 111 (CanLII), 240 CCC (3d) 204, per Roscoe JA (3:0)
- ↑
PJS, ibid., at para 15
- ↑
PJS, ibid., at para 16
- ↑
PJS, ibid., at para 16
- ↑ R v RP, 2004 ONCJ 190 (CanLII), 190 CCC (3d) 244, per Duncan J
- ↑
R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J
cf. R v PJM, 2009 ABPC 207 (CanLII), per Fradsham J
- ↑
R v P(R), 2004 ONCJ 190 (CanLII), 190 CCC (3d) 244, per Duncan J
- ↑ P(R), ibid.
- ↑ P(R), ibid.
- ↑ P(R), ibid.
- ↑ PJS, supra
- ↑
R v MSS, 2008 SKPC 5 (CanLII), 312 Sask R 203, per Whelan J
Probation
A sentence of probation and conditional discharge are inconsistent with each other and cannot both be applied.[1]
42
[omitted (1)]
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
- [omitted (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j)]
- (k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;
- [omitted (l), (m), (n), (o), (p), (q), (r) and (s)]
[omitted (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
- ↑
R v RCM, 2009 ABPC 130 (CanLII), 472 AR 317, per Redman J, at para 26
Deferred Custody
42
[omitted (1), (2), (3) and (4)]
- Deferred custody and supervision order
(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if
- (a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and
- (b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.
[omitted (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
A deferred custody order is similar to that of an adult conditional sentence in that it permits rehabiliation outside of true custody.[1]
Probation cannot run concurrently to a deferred custody order.[2]
Deferred custody cannot be ordered where full custody is not an available option.[3]
- ↑ R v ESA (2003), 2003 CarswellAlta 628 (ABPC)(*no CanLII links)
- ↑ R v JRR (2003), 2003 CarswellBC 3242 (B.C. Prov. Ct.)(*no CanLII links)
- ↑ R v CDJ, 2005 ABCA 293 (CanLII), (2005), 2005 CarswellAlta 1309, per curiam
Intense Rehabilitative Custody and Supervision Order
Section 42(2)(r) permits the court to order an Intensive Rehabilitative Custody and Supervision Order (IRCS Order).
Section 42(7)(a) sets the prerequisites for a IRCS order:
42
[omitted (1), (2), (3), (4), (5) and (6)]
- Intensive rehabilitative custody and supervision order
(7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(r) in respect of a young person only if
- (a) either
- (i) the young person has been found guilty of a serious violent offence, or
- (ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;
- (b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;
- (c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence; and
- (d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate.
[omitted (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, c. 1, s. 42; 2012, c. 1, s. 174; 2019, c. 25, s. 373.
Custody and Supervision Order
Fine
- Where a fine or other payment is ordered
54 (1) The youth justice court shall, in imposing a fine under paragraph 42(2)(d) or in making an order under paragraph 42(2)(e) or (g), have regard to the present and future means of the young person to pay.
- Discharge of fine or surcharge
(2) A young person on whom a fine is imposed under paragraph 42(2)(d), including any percentage of a fine imposed under subsection 53(1), or on whom a victim fine surcharge is imposed under subsection 53(2), may discharge the fine or surcharge in whole or in part by earning credits for work performed in a program established for that purpose
- (a) by the lieutenant governor in council of the province in which the fine or surcharge was imposed; or
- (b) by the lieutenant governor in council of the province in which the young person resides, if an appropriate agreement is in effect between the government of that province and the government of the province in which the fine or surcharge was imposed.
- Rates, crediting and other matters
(3) A program referred to in subsection (2) shall determine the rate at which credits are earned and may provide for the manner of crediting any amounts earned against the fine or surcharge and any other matters necessary for or incidental to carrying out the program.
[omitted (4), (5), (6), (7), (8) and (9)]
- Application for further time to complete youth sentence
(10) A youth justice court may, on application by or on behalf of the young person in respect of whom a youth sentence has been imposed under any of paragraphs 42(2)(d) to (i), allow further time for the completion of the sentence subject to any regulations made under paragraph 155(b) and to any rules made by the youth justice court under subsection 17(1).
The time to pay may be extended under s. 54(10) of the YCJA.
- Victim Surcharge
- Funding for victims
53 (1) The lieutenant governor in council of a province may order that, in respect of any fine imposed in the province under paragraph 42(2)(d), a percentage of the fine as fixed by the lieutenant governor in council be used to provide such assistance to victims of offences as the lieutenant governor in council may direct from time to time.
- Victim fine surcharge
(2) If the lieutenant governor in council of a province has not made an order under subsection (1), a youth justice court that imposes a fine on a young person under paragraph 42(2)(d) may, in addition to any other punishment imposed on the young person, order the young person to pay a victim fine surcharge in an amount not exceeding fifteen per cent of the fine. The surcharge shall be used to provide such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
Community and Personal Service
54
[omitted (1), (2), (3), (4), (5) and (6)]
- Orders under paragraph 42(2)(h), (i) or (m)
(7) No order may be made under paragraph 42(2)(h), (i) or (m) unless the youth justice court is satisfied that
- (a) the young person against whom the order is made is a suitable candidate for such an order; and
- (b) the order does not interfere with the normal hours of work or education of the young person.
- Duration of order for service
(8) No order may be made under paragraph 42(2)(h) or (i) to perform personal or community services unless those services can be completed in two hundred and forty hours or less and within twelve months after the date of the order.
- Community service order
(9) No order may be made under paragraph 42(2)(i) unless
- (a) the community service to be performed is part of a program that is approved by the provincial director; or
- (b) the youth justice court is satisfied that the person or organization for whom the community service is to be performed has agreed to its performance.
[omitted (10)]
Consecutive Sentences
Ancillary Orders
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))
Appeals and Reviews
- Review of youth sentences not involving custody
59 (1) When a youth justice court has imposed a youth sentence in respect of a young person, other than a youth sentence under paragraph 42(2)(n), (o), (q) or (r), the youth justice court shall, on the application of the young person, the young person’s parent, the Attorney General or the provincial director, made at any time after six months after the date of the youth sentence or, with leave of a youth justice court judge, at any earlier time, review the youth sentence if the court is satisfied that there are grounds for a review under subsection (2).
- Grounds for review
(2) A review of a youth sentence may be made under this section
- (a) on the ground that the circumstances that led to the youth sentence have changed materially;
- (b) on the ground that the young person in respect of whom the review is to be made is unable to comply with or is experiencing serious difficulty in complying with the terms of the youth sentence;
- (c) on the ground that the young person in respect of whom the review is to be made has contravened a condition of an order made under paragraph 42(2)(k) or (l) without reasonable excuse;
- (d) on the ground that the terms of the youth sentence are adversely affecting the opportunities available to the young person to obtain services, education or employment; or
- (e) on any other ground that the youth justice court considers appropriate.
- Progress report
(3) The youth justice court may, before reviewing under this section a youth sentence imposed in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth justice court, a progress report on the performance of the young person since the youth sentence took effect.
- Subsections 94(10) to (12) apply
(4) Subsections 94(10) to (12) apply, with any modifications that the circumstances require, in respect of any progress report required under subsection (3).
- Subsections 94(7) and (14) to (18) apply
(5) Subsections 94(7) and (14) to (18) apply, with any modifications that the circumstances require, in respect of reviews made under this section and any notice required under subsection 94(14) shall also be given to the provincial director.
- Compelling appearance of young person
(6) The youth justice court may, by summons or warrant, compel a young person in respect of whom a review is to be made under this section to appear before the youth justice court for the purposes of the review.
- Decision of the youth justice court after review
(7) When a youth justice court reviews under this section a youth sentence imposed in respect of a young person, 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 youth sentence;
- (b) terminate the youth sentence and discharge the young person from any further obligation of the youth sentence; or
- (c) vary the youth sentence or impose any new youth sentence under section 42, other than a committal to custody, for any period of time, not exceeding the remainder of the period of the earlier youth sentence, that the court considers appropriate in the circumstances of the case.
- New youth sentence not to be more onerous
(8) Subject to subsection (9), when a youth sentence imposed in respect of a young person is reviewed under this section, no youth sentence imposed under subsection (7) shall, without the consent of the young person, be more onerous than the remainder of the youth sentence reviewed.
- Exception
(9) A youth justice court may under this section extend the time within which a youth sentence imposed under paragraphs 42(2)(d) to (i) is to be complied with by a young person if the court is satisfied that the young person requires more time to comply with the youth sentence, but in no case shall the extension be for a period of time that expires more than twelve months after the date the youth sentence would otherwise have expired. [omitted (10)]
2002, c. 1, s. 59; 2019, c. 25, s. 375.