Youth Offenders

What is the Youth Criminal Justice Act (YCJA)?

In Canada, the Youth Criminal Justice Act (YCJA) governs the prosecution of anyone, between the ages of 12 and 17, who is alleged to have committed a criminal offence. Parliament enacted the YCJA in 2003 to replace the Young Offenders Act. This was specifically done in order to respond to the over-incarceration of young people that was occurring under the old law. In fact, before the YCJA was enacted, Canada had one of the highest rates of youth incarceration in the world. The YCJA promotes the rehabilitation and reintegration of youth offenders, and acknowledges the principle that young people should not be held to the same moral standards and culpability as adults. The YCJA is divided into the following eight major parts:

  1. Extrajudicial Measures
  2. Organization of the Youth Criminal Justice System
  3. Judicial Measures
  4. Sentencing
  5. Custody and Supervision
  6. Publication, Records, and Supervision
  7. General Provisions
  8. Transitional Provisions
The YCJA creates special procedures and rights for youth offenders.

Pursuant to the YCJA, youth offenders get additional procedural benefits and rights. These rights include:

  • Promotion of extrajudicial measures (see below)
  • Creation of youth courts
  • Bail
    • When a young person is held for a bail hearing under the YCJA, the burden is always on the Crown prosecutor to show that the young person should not be released in the community. On the other hand, adults, depending on what they’ve been charged with, may be subject to what is called a reverse onus bail. In those cases, the burden is on the adult accused to argue that they should be released in the community pending their trial. In youth proceedings under the YCJA, there are no reverse onus bail hearings.
  • Notice to the parent
    • Before any proceeding under the YCJA, the parent of the charged youth (including step-parents, foster parents, and Children’s Aid) must be notified.
  • First appearances
    • During a first appearance in court, the youth is read their charges, instructed about retaining a lawyer, and notified by the prosecutor if he or she is seeking an adult sentence (see below) for the youth.
  • Different rules of statement admissibility
    • Statements made by youth to those in authority are generally not admissible unless it was made clear in plain language that the youth have the right to remain silent, the right to a lawyer, and that there is no obligation to make a statement.
  • Different sentencing ranges (see below)

No. The minimum age to be charged with a crime in Canada is 12. When a child under 12 is caught doing something illegal, the police would likely just inform the child’s parents. In more serious situations, the government can take other actions such as removing the child from the home via Children’s Aid for the child’s protection.

To be eligible for Legal Aid in Ontario, you must meet certain income requirements. When a young person is denied Legal Aid, but nevertheless wishes to obtain counsel and is unable to do so, a section 25 application may be brought. A Judge is able to respond to this application by directing that the young person be represented by a lawyer, irrespective of the Legal Aid denial.

Part 1 of the YCJA encourages the use of extrajudicial measures (that is, programs or initiatives that allow the young person to resolve their matters without having to go to court). Extrajudicial measures include:

  • Warnings
    • Warnings are informal verbal notices given by a police officer to the young person.
  • Cautions
    • Cautions are formal, written letters, either from the police or the Crown prosecutor, asking the youth and his or her parents to come and discuss the youth’s behaviour and potential ways to correct it.
  • Referrals
    • A referral can be made to send the young person to certain programs which promote their rehabilitation. These referrals can include things such as drug therapy or other community programs.
  • Sanctions
    • Sanctions are formal youth programs that are set up by provinces.

In the event that the Crown chooses to prosecute and not use extrajudicial measures, sentencing for youth offences is still very different from adult sentencing. Unlike in adult sentencing, general deterrence is never a consideration when sentencing a youth. Further, for a young person to be sentenced to custody (prison, jail), at least one of the following conditions must be met:

  • The youth committed a crime of violence;
  • The youth has failed to comply with non-custodial sentences in the past;
  • The youth committed a serious offence for which an adult would be liable to imprisonment for more than two years and the youth has a pattern of criminal behaviour.
  • The youth committed an offence where a non-custodial (non-jail) punishment would be inconsistent with the purposes of sentencing.

The above four factors are sometimes referred to as the gateways to custody.

Section 42(2) of the YCJA gives a list of potential sentences a judge can order for a youth who is found guilty of a crime. These sentences can include discharges, fines not exceeding $1000, restitution orders, prohibition orders, and imprisonment.

A youth may not be charged as an adult, but they can be sentenced as an adult in rare cases. To be sentenced as an adult, the following requirements must be met:

  • The offender is at least the age of 14.
  • The offender committed a serious violent offence such as murder, manslaughter, attempted murder, or aggravated sexual assault.
  • An application is made by the Attorney General requesting the Court for an adult sentence.
  • The Court hears the application and accepts that an adult sentence is appropriate because:
    • The youth who committed the crime is morally blameworthy, and
    • A youth sentence would not be enough to hold the youth accountable for his or her behaviour.

Maybe. Young people do not have criminal records since no convictions can be registered against a young person in youth court. Instead, these youth are given youth records. A youth record (a record of your interactions with the legal system under the YCJA) is accessible to members of the legal system (judges, police, prosecutors), and anyone else who has authority to do so under s. 119 of the YCJA.

However, a youth record can only be accessed during its “access/retention period”. The length of this access period depends on the type of crime the young person was found guilty of and the sentence imposed. Once the access period is “closed”, the youth record is sealed, and it can no longer be accessed by anyone except for very narrow circumstances.

The access period can also extend should the young person commit a further crime while the access period is still open. If, however, the young person is further convicted of a crime as an adult while access to their youth record is still open, the youth record will remain open indefinitely.

Here are some examples of youth dispositions/sentences and their respective access periods:

  • Acquittals, dismissals, and withdrawn charges stay on your record for two months before they are sealed.
  • Crimes for which a young person has been granted an extrajudicial sanction: 2 years.
  • Discharge with conditions: 3 years from the date the young person is found guilty.
  • Absolute discharge: 1 year from the date the young person is found guilty.

How can our firm help?

Lakin Afolabi Law is a multilingual and empathetic law firm with over a decade of experience defending all types of criminal charges, including those involving youth. We understand the anxiety that young people face when faced with the force of the criminal justice system. By working with our firm, you will have access to a team of experts in criminal law and youth law who will guide you and communicate clearly with you as we do everything we can to favourably resolve your criminal charges. If you or a loved one is facing criminal charges, contact us today to see how we can help.

The identities of youth offenders are protected in proceedings through publication bans.

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