Introduction

In Canada, when an adult breaks a law and is convicted of an offence, they are sentenced by an adult court to serve a period of time either in the community with certain conditions, or in a federal or provincial prison. The processes and principles associated with adult offenders are governed by the Criminal Code of Canada. When a young person commits an offence and is convicted and then sentenced, the processes and principles associated with those offenders are governed by the Canadian Youth Criminal Justice Act (YCJA). The YCJA, which came into effect in 2003, was passed in order to ensure that the special circumstances surrounding young people who offend were addressed by the Canadian Justice System. A young offender is, as described by the YCJA, “a person who is, or, in the absence of evidence to the contrary, appears to be twelve years old or older, but less than eighteen years old.”

The YCJA and the Criminal Code of Canada

Although the YCJA has been adapted to provide for the specific needs and situations of young persons, the basic principles of this act and the Criminal Code are similar. For example, the principles of rehabilitation, deterrence, denunciation and accountability are present in both adult and youth areas of the justice system, although they are approached in different ways. Also, the YCJA adopts the same definitions of offences from the Criminal Code. This means that if, for example, an adult commits “theft” which is described in the Criminal Code as when a person “fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything… (See § 322 of the Criminal Code for full description)” a young person who performs similar actions to that of the adults’ actions, would also be said to have committed “theft”.

The way in which the YCJA provides for the circumstances of young people is therefore not by changing the definition of the offence, but by providing consequences that are more meaningful and appropriate for young offenders. Indeed, the YCJA is meant to protect society by (i) holding young person’s accountable through measures that are proportionate to the seriousness of the offences and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) support the prevention of crime by referring young person’s to programs or agencies in the community to address the circumstances of their offending behaviour.

Applying specific consequences to young offenders is based first on the principle of diminished moral blameworthiness or culpability, and then emphasizes rehabilitation and reintegration, fair and proportionate accountability that is consistent with the greater dependency and reduced level of maturity, enhanced procedural protection to ensure that young persons are treated fairly and that their rights are protected, timely intervention that reinforces the link between the offending behaviour and its consequences, and that the persons responsible for enforcing this Act do so in a prompt and timely manner given young persons’ perception of time.

Sentencing

Sentencing according to the YCJA is meant prevent crime and protect the public by holding young person’s accountable through measures that are proportionate to the seriousness of the offence and degree of responsibility of the young person, by promoting the rehabilitation and reintegration of young persons who have committed offences, and to support the prevention of crime by referring young person’s to programs or agencies in the community to address the circumstances underlying their offending. The YCJA also states that “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.”

With these concepts in mind, it is also an important theme of the YCJA that the type of sentence received by the young offender is the least restrictive sentence which is still able to protect society, promote a sense of responsibility, and to rehabilitate the young offender. This means that the court should take into account all possible alternative sanctions before considering a custodial sentence before considering that option. Some alternative types of sentences would include intensive support and supervision by parole officers and support workers, reprimand, intensive rehabilitation and supervision order, intermittent sentence order, community service, as well as others.

Essentially, the sentences that youths receive are meant to be proportionate to the amount of involvement they had in the crime committed, the severity of their crime, and are meant to be centred on promoting accountability, rehabilitation and meaningful accountability. This approach is intended to promote long term protection of society as opposed to using harsh punishments that may not promote a sense of responsibility and accountability in the offender, and in turn would be unlikely to deter them from offending again. An example that illustrates the type of sentence that supports the idea of accountability in young offenders would be if the young person was convicted of “theft under five thousand dollars” for instance, they may be ordered to make restitution to the victim. This means that they may have to return property that was stolen, pay for the property that was stolen, or provide some sort of service to the victim or community to compensate for what they had stolen. For young offenders, this type of sentence is often more effective then receiving the adult sentence of up to 2 years in prison.

Throughout sentencing as well as afterwards, the young person has the right to participate and be heard in all processes except for the decision to prosecute. Parents are also encouraged to be involved in all proceedings as well as to support their child when addressing their offending behaviour. Victims can decide whether they want to participate in the processes if they want to, and also may decide if they want to have any contact with the young person after the crime, including out-of-court sanctions.

Adult Sentences

In some circumstances, a young person may be sentenced as an adult. An “adult sentence” is one in which a young offender would be subject to the same sentence that would be imposed on an adult who had been convicted of the same offence. Adult sentences can only be applied so long as the young offender is over the age of 14 and has committed an offence for which an adult would receive a prison sentence of 2 years or more. In order to receive an adult sentence, the Attorney General must apply for such a sentence to be and are mainly imposed when a serious violent offence has been committed. Serious violent offences include first or second degree murder, attempted murder, manslaughter, and aggravated sexual assault. For these types of sentences, the Crown Attorney must consider seeking an adult sentence.

Furthermore, the court may impose an adult sentence on other offences for which an adult would serve two or more years in prison, and so long as the young person was over the age of fourteen when the offence was committed. If an application for an adult sentence has been submitted for one of these offences, the judge will consider the seriousness and circumstances of the offence, the age, maturity, character, background and previous record of the young person before deciding if an adult sentence would be appropriate. The Attorney General must notify the young person that they intend to seek an adult sentence before the young person enters a plea or before the commencement of the trial. The application by the Attorney General can be challenged by the young person, and if this happens, the courts could decide to proceed with the pursuit of an adult sentence, or they may deny the application if they think that a youth sentence will suffice in deterring and promoting responsibility in the young offender.

Although an adult sentence may be applied to a youth and the youth would therefore serve his or her sentence as if they were an adult, it is still the youth court that would convict and sentence the young person. This is a process that was introduced when the YCJA was implemented. This is different from the previous law used under the Young Offenders Act in that youths would have previously had a hearing prior to a finding of guilt that would determine whether or not they would serve an adult sentence if found guilty. If the court found that the young offender should in fact serve an adult sentence if found guilty, the youth would have been transferred to an adult court, and the proceedings would have then taken place there as if they were an adult. As was stated previously this is no longer so, and all youths are tried in a youth court.

If a youth is to serve an adult sentence, they can be placed in one of three places. First, the youth may be placed in a youth facility separate and apart from any adult who is detained or held there. According to the YCJA, no youth shall remain in a youth facility past the age of twenty years unless the youth justice court is satisfied remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others. Second, they may be placed in a provincial facility for adults (if the length of the sentence is under 2 years) or thirdly, they may be placed in a penitentiary if their sentence is over 2 years in length. Youths will serve portions of their sentence in an adult facility if the youth court decides that it would not be in the best interests of the youth, or that the safety of others will be in jeopardy if the youth is admitted into a youth facility.

The length of sentence that a youth would receive if serving an adult sentence tends to either be shorter than an adult sentence, or they will be eligible for parole sooner than is the standard for adults. This is because a young person’s perception of time is different from that of adults, and that shorter sentences for youths are usually just as effective as the longer sentence an adult would have received. Also, in regards to special risk category offenders such as sex offenders, dangerous offenders, or long term offenders, a youth would be required to register as having this status on the respective national registries. However, they would only be required to register as such an offender if they were convicted and received an adult sentence (young offenders who receive a youth sentence are not required to register).

Although the YCJA is a federal piece of legislation, youth facilities are provincially operated.  Youth facilities can either be open or secure. An open facility is one which is not as harsh as prison but is less lenient then allowing the offender back into the community unfettered. These facilities take on the form of group homes, community residential centres, child care institutions, or wilderness camps. They are not prisons but do allow for the young person to be in a structured environment which have the programs and services they need available more readily.

Custody in a secure facility (as is best described by the government of British Columbia on their Youth Custody Services website), “is intended for youth who have been found guilty of serious offences, or for youth who have a persistent pattern of offending and cannot be reasonably supervised in a community setting or in open custody”. This description is true for all provinces and in all provinces these facilities also have programs, services and the appropriate supportive environment the young offenders may need. It is important to note that the programs in these facilities are often more intensive and contain more elements of rehabilitation and pro-social development than those offered through an open custody facility. This is due to the fact that, as mentioned above, those youths who are placed in these facilities have committed serious offences or have a history of previous criminal activity.

Although the intensity of the programs vary between the two types of facilities, the nature of the programs are very similar. They both provide counselling and support in areas such as academics/education, psychological counselling, addiction counselling, anger management, life skills, recreation, cultural programs etc.

Publication Bans

Under most circumstances, when a young person has been found guilty of a crime, their name and other personal information is protected by a publication ban. This information about young offenders is not published because it is believed that it would hinder the young person’s ability to be rehabilitated and to reintegrate into society. In cases where a young person has received an adult sentence however, the publication ban is normally lifted. Furthermore, with the introduction of the Safe Streets and Communities Act, if a young person is sentenced as a youth but had committed a violent offence, the court must consider lifting the publication ban, keeping in mind the protection of society.

The Role of the Victim

Victims have the right to know the young offender’s name when they are given an out of court sanction, to know what the out of court sanctions are but they may not make the name of the young person public. Victims may also ask for any public court records at any point of the youth criminal justice process. Within the YCJA there is a lot of room for discretion, and restorative justice is a top priority. Through the practice of restorative justice, victim’s needs such as information, empowerment, and restitution can be effectively met, as victims will be able to express to the offender exactly how their crime has effected them, and the young offender can be held accountable for those actions more realistically. When victims choose to have mediated contact with their offender and can see that the offender has taken responsibility for their actions, some sense of justice is provided and both victim and offender have been known to cope better after having participated in restorative justice.

Conclusion

The YCJA is a useful piece of legislation in that it allows for young offenders to be provided with better programming and treatment as a way to reintegrate them into society as law abiding citizens. They are given sentences that the courts deem to be proportionate to the crime they have committed and that will protect society adequately. Unfortunately, what is deemed as appropriate from the perspective of the court may not seem so from the perspective of the victim. This is usually because of the shorter sentences that youths receive, or the fact that the court can use their discretion to allow youths to be eligible for parole at an earlier time when sentenced as an adult if they so choose. It is important to remember however, that the YCJA was implemented to attempt to rehabilitate and reintegrate young offenders in such a way that they will be able to function lawfully in society after their interaction with the justice system.

Department of Justice Canada. Are you a victim of youth crime? 2010. http://www.justice.gov.nt.ca/pdf/VictimsServices/VictimSupportBKLT.pdf

Diana Cooke, Advocacy Officer and Judy Finlay, Chief Advocate. January 2007. OCFSA REVIEW OF OPEN DETENTION AND OPEN CUSTODY. http://provincialadvocate.on.ca/documents/en/open%20Custody-opendetention

Government of British Columbia. 2010. Youth Custody Services. http://www.mcf.gov.bc.ca/youth_justice/custody.htm

Lyne casavant, Robin MacKay, Dominique Valiquet. 18 November 2008. Legal and Legislative Affairs Division. Library of Parliment. http://epe.lac-bac.gc.ca/100/200/301/library_parliament/backgrounder/2009/youth_justice-e/prb0823-e.pdf

Ontario Ministry of Children and Youth Services. 2009. Custody Services. http://www.children.gov.on.ca/htdocs/English/topics/youthandthelaw/guilty.aspx%20Reveiw.pdf

Tustin, Lee and Lutes, Robert. 2008. A Guide to the Youth Criminal Justice Act. Lexis Nexis; Markham.

Victim Information. Sentences for Young Offenders. 2010. Department of Justice Canada. http://nl1529.lces.ca/en/about-court/going-to-trial/how-trial-will-proceed/sentencing/sentences-for-young-offenders