How Youth Sentencing Works in Canada

Sentencing principles set out the procedures used to administer punishment for a crime. According to the DoJ, one of the key principles of youth sentencing is making sure the penalty fits the seriousness of the offence while considering "the maturity of the young personA person dealt with under the youth criminal justice system. involved and the conditions under which the crime was committed." The (YCJA) replaced the Young Offenders Act (YOA) in 2003, intending to ensure jail terms are reserved for the most serious cases. Under the YOA, "Canada had one of the highest youth incarceration rates in the Western world," according to the Department of Justice. There were concerns about the Young Offenders Act that included: the overuse of the courts and incarceration in less serious cases; disparity and unfairness in sentencing; a lack of effective reintegration of young people released from custody; and the need to better take into account the interests of victims. The maximum length of youth sentences under the YCJA ranges from two to 10 years, depending on the offence committed and the type of sentence imposed. However, if tried as an adult, a youth can be jailed for life for crimes such as murder. When determining the appropriate sentence, the Act mandates that judges consider the need "to protect the public by holding youth accountable, promoting the rehabilitation and reintegration of youth back into society, and preventing crime. The DoJ states the "youth criminal justice system must be separate from the adult system and based on the principle that youth are presumed to be less morally blameworthy than adults." According to the DoJ, the YCJA is based on principles that recognize communities and families should work together with others to prevent youth crime by addressing its underlying causes. Youth have special guarantees of their rights and freedoms under the Act, which requires that a proportionate sentence "be the least restrictive alternative capable of achieving the purpose of sentencing and the option most likely to rehabilitate and reintegrate the young person." The goal is to promote a sense of responsibility in the youth, as well as an acknowledgement of the harm done by the offence. The DOJ states a sentence may also include "the objectives of denouncing the criminal behaviour and deterring the young person from committing further offences." Before considering whether a youth should serve a period in custody, a judge must look at all available options other than incarceration "that are reasonable in the circumstances, paying particular attention to the circumstances of aboriginal young persons." The YCJA aims to consider the interests of victims while ensuring accountability through meaningful consequences, rehabilitation and reintegration. During sentencing, a judge will look at aggravating or mitigating factors. An aggravating factor can increase the severity of the sentence and include such things as the seriousness of the offence. If you are a first-time offender, that would be considered a mitigating factor and may decrease the punishment handed down. Under the YCJA, a fair sentence for a young person must: hold the youth accountable in a way that is proportionate to the seriousness of the offence and the young person's degree of responsibility; promote rehabilitation, helping the youth change their behaviour and make better choices; support reintegration, helping the young person return to their community as a contributing member; be the least restrictive option that can still achieve those goals; and where appropriate, recognize the harm done to the victim and the community. These youth sentencing principles are distinct from the adult sentencing objectives in the Criminal Code. An adult court weighs additional factors such as general deterrence and separation from society that a youth court treats differently, if at all, because youth are presumed to be less morally blameworthy than adults.

The YCJA includes provisions that permit the use of extrajudicial measuresYouth justice responses outside formal court proceedings. for less-serious offences if it is deemed they would be adequate to hold non-violent offenders accountable.

Police may choose to handle the offence through extrajudicial measures, which include:

• taking no further action
• a warning from police
• a caution from the police, which is more formal than warnings and may involve a letter from police to the youth and the parents. The youth and parents may be required to appear at the police station for a meeting to discuss the incident
• a referral from police to a community program or agency designed to help youth avoid committing offences
• a Crown caution (similar to police cautions but issued by prosecutors after the police have referred the case to them)
• an extrajudicial sanction, which is applied through more formal programs developed by provinces and territories.

Youth court judges also have different sentencing options to deal with offenders that include community-based sentences and custody and supervision sentences .

As the term implies, a community-based sentence would allow you to remain free while serving your sentence in the community, often under strict conditions. A custodial sentence includes time in a youth facility and a period of community supervision. Custody is intended primarily for violent offenders and serious repeat offenders.

Judges also have the option to impose an intensive rehabilitative custody and supervision order if you are found guilty of a serious violent offence and suffer from a mental, psychological or emotional disorder. A treatment and intensive supervision plan is developed for you in those circumstances.

When you are released from custody, the YCJA mandates that you receive assistance to reintegrate into the community, so there will be a period of supervision and support in the community as part of your sentence. When you are sentenced, a judge will set out the time you spend in custody and the period to be served under supervision. A youth worker is assigned to assist you in planning for your reintegration into the community.

If your crime is serious, a judge has the option of sentencing you as an adult if you were 14 years of age or older when the crime was committed. The Crown may apply for an adult sentence in cases where the offence would carry an adult prison term of more than two years. Whether to seek an adult sentence is a decision the Crown makes based on the circumstances of the case.

If you are sentenced as an adult, the Criminal Code penalties for adult offenders will apply and can include mandatory minimum penalties and sentences of up to life imprisonment. If you are under 18, you cannot be placed in a provincial correctional facility or penitentiary. The court will decide where you serve your sentence, and a review of your placement can be held if your circumstances change. Once you reach age 20, you generally cannot remain in a youth custody facility unless a court determines it is in your best interests and does not jeopardize the safety of others.

When deciding your sentence, a judge will take the following into account:

• the degree of participation by the young person in the commission of the offence
• the harm done to victims and whether it was intentional or reasonably foreseeable
• any reparation made by the young person to the victim or the community
• the time spent in detention by the young person as a result of the offence
• the previous findings of guilt; and any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Besides custody or probation, a judge also has the option of imposing the following penalties:

Reprimand

Essentially a stern lecture or warning from the judge. The experience of going through the judicial system and being reprimanded is considered sufficient to hold a youth accountable in minor cases.

Intensive support and supervision order

It offers closer monitoring and more support than a probation order to help the offender change their behaviour.

Attendance order

The youth is required to attend a program on conditions set by the judge and can be crafted to address the offender's particular circumstances, such as targeting the time when they should be supervised.

Deferred custody and supervision order

A youth who would otherwise be jailed can serve a sentence in the community under conditions. If the conditions are violated, the youth can be remanded into custody. This order is not available for offences where the offender caused or attempted to cause serious bodily harm.

Intensive rehabilitative custody and supervision order

Such sentences are reserved for violent offenders. A judge could hand down this sentence if the youth was found guilty of a serious violent offence or where they caused or attempted to cause serious bodily harm. This option is also available to the court if the youth is suffering from a mental or psychological disorder or an emotional disturbance, if a treatment plan has been developed for the offender or if an appropriate program is available and the youth is suitable for admission.

A judge can consider victim or community impact statementsA statement describing how an offence affected a victim when handing down a sentence. These statements detail the physical or emotional harm, economic loss or property damage incurred due to the crime.

Anyone “who has suffered physically or emotionally, or who has had their property damaged or lost money, as a result of an offence committed against them or another person” can prepare a victim impact statement, according to the Department of Justice.

Before you receive your sentence, the judge will conduct a hearing where you and the Crown prosecutor have the opportunity to present arguments about what the appropriate sentence should be. You are permitted to make submissions to support your reasons. The judge may also order a Pre-Sentence Report before imposing a sentence.

A young person may be charged with a Criminal Code offence, but sentencing is governed by the Youth Criminal Justice Act. The adult Criminal Code maximum is not the young person’s ordinary sentencing exposure.

1. Extrajudicial measures

Many youth matters, especially less serious first-time matters, may be handled without a formal court sentence. That does not mean the conduct is minor or consequence-free. The process depends on the offence, the young person’s history, the evidence, the victim’s circumstances, and the decisions of police, Crown, and the youth justice court.

2. Non-custodial youth sentences

If the court does impose a youth sentence, many outcomes are non-custodial: a reprimand, an absolute or conditional discharge, a fine (up to $1,000), compensation or restitution, community service, or probation (up to two years).

3. Custody and supervision

A custody and supervision order is split between a period in custody and a period of supervision in the community. For most offences, a custody-and-supervision order cannot exceed two years, or three years if the offence carries adult life imprisonment.

4. Murder and other higher-cap offences

A small number of offences have their own higher caps. For first degree murder, the maximum youth sentence is 10 years total, with no more than 6 years in custody. For second degree murder, the maximum youth sentence is 7 years total, with no more than 4 years in custody.

A special three-year cap also applies to attempt murder, manslaughter, and aggravated sexual assault.

5. Adult sentence — a rare exception

In rare cases the Crown can apply for an adult sentence. It is never automatic. It is available only where the adult maximum for the offence is more than two years and the young person was at least 14 at the time, and the youth justice court must apply the legal test before an adult sentence can be imposed.