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Toronto criminal youth justice lawyer

Toronto YOUNG Offender Lawyer

The Youth Criminal Justice Act applies to young persons who find themselves in the criminal justice system. The Act makes it clear that young persons charged with criminal offences are to be treated differently from adult offenders. The overarching principles of youth criminal justice seek to promote the rehabilitation and reintegration of youths back into society. It is also generally accepted that youths have a diminished level of moral culpability and must therefore be dealt with under a specific youth criminal justice system.

Brian Weingarten is a Toronto criminal lawyer who understands the unique demands that youth criminal proceedings have both upon the client and their family.

To Whom Does the Youth Criminal Justice Act Apply?

The Youth Criminal Justice Act applies to youths between the ages of 12 and 18 that have been charged with a criminal offence. Whether proceedings against the accused are brought in youth court depends upon the date that the offence was alleged to have taken place, not the age of the individual at the time that they are charged or brought to trial.

What are the Key Principles of Youth Justice in Canada?

There are a number of key principles contained both in the preamble to the Youth Criminal Justice Act, and in section 1. Some of these key principles can be summarized as follows:

  • The youth justice system should foster responsibility and ensure accountability through meaningful consequences to the youth;
  • The youth justice system should hold young persons accountable through measures that are proportionate to the seriousness of the offences and the degree of responsibility of the young person;
  • The youth justice system should promote rehabilitation and the reintegration of young persons who have committed offences;
  • The youth justice system should support the prevention of crime by referring young persons to programs and agencies in the community in order to address the circumstances underlying their behaviour;
  • The youth justice system should provide enhanced procedural protections, as well as the right to privacy.

What are Extrajudicial Measures?

Under the adult criminal justice system, certain charges may be “diverted” out of the criminal justice system. This is dependant upon the nature of the crime, the criminal record of the accused, and the injury or loss to the victim.

Under the youth justice system, extrajudicial measures act as a form of officially sanctioned diversion. There is a wide range of extrajudicial measures that may be imposed upon a young person, some more formal than others. In all cases, however, the successful completion of these measures results in the charges being withdrawn.

As the name implies, extrajudicial measures and sanctions are methods used to address a young person’s behaviour without engaging a formal court proceeding.

Under the Youth Criminal Justice Act, extrajudicial measures may be employed where they would be adequate to hold a young person accountable for his or her offending behaviour, and where their use is not inconsistent with the principles set out in the Act.

Extrajudicial measures may take one of three forms:

  • A warning to the young person;
  • The administering of a caution of the young person;
  • The referral of the young person to a program or agency in the community that specializes in helping youths avoid crime, or that addresses the underlying causes of their criminal behaviour.

What are Extrajudicial Sanctions?

Extrajudicial sanctions are a subset of extrajudicial measures. Extrajudicial sanctions, however, are used where a warning, caution or referral is not adequate to address the youth’s behaviour in light of the seriousness of the offence, the number of previous offences, or other aggravating circumstances. Again, extrajudicial sanctions are imposed outside of a formal criminal proceeding.

Extrajudicial sanctions typically consist of the participation in a particular program aimed at addressing the youth’s underlying behaviour that has brought them before the court. These programs include shoplifting prevention programs, anger management programs, or other life skills programs. Where these programs or other sanctions are completed to the satisfaction of the Court and the prosecutor, the charges will be withdrawn.

The Youth Criminal Justice Act prescribes a number of conditions that must be met before a youth’s charges may be dealt with by way of extrajudicial sanctions. These include:

  • The young person accepting responsibility for the act or omission that forms the basis of the alleged offence;
  • The young person freely consenting to be subject to the extrajudicial sanction;
  • The use of an extrajudicial sanction being appropriate having regard to the needs of the young person and the interests of society;
  • The sanction that is to be implemented must be part of an approved program.

Extrajudicial sanctions may not be used where the young person denies involvement in the offence, or where he or she wishes to have the charge dealt with by the youth court.

It is also important to note that if extrajudicial sanctions are imposed, the parent(s) of the youth must be notified.

How Does the Bail Procedure Work in Youth Cases?

Generally, the Criminal Code provisions addressing bail apply to both adult and youth matters (See: Bail Hearings and Bail Reviews). The primary, secondary and tertiary grounds outlined in s. 515 of the Criminal Code apply to decisions as to whether or not to detain a youth. However, there are a number of important procedural and principled differences to the bail procedure in youth court matters.

First, the Youth Criminal Justice Act makes it clear that the Court should not detain young persons as a substitute for appropriate child protection, mental health or other social measures. The Act also prescribes that a youth court judge or justice may only detain a young person in custody if: 1) the offence is a “serious offence;” or 2) the offence is not a serious offence, but there is a history of outstanding charges or findings of guilt. Finally, even if the primary, secondary, or tertiary grounds are made out at a bail hearing, the judge or justice must be satisfied on a balance of probabilities that no condition of release that would:

  • reduce the risk of a young person not attending at court below a substantial likelihood;
  • offer adequate protection to the public from the risk that the young person might otherwise present; or
  • maintain confidence in the administration of justice.

What Principles Apply to Youth Sentencing?

When a young person is found guilty of an offence after trial, or when the youth pleads guilty prior to trial, the youth sentencing regime will be engaged. While the Criminal Code contains a number of sentencing principles, the Youth Criminal Justice Act prescribes certain considerations and principles that must be taken into account when sentencing a youth.

The Youth Criminal Justice Act provides that the overarching purpose of sentencing is to hold a young person accountable for their actions through the imposition of just sanctions that:

  • have meaningful consequences for the youth;
  • promote rehabilitation and reintegration into society.

Recent amendments to the Youth Criminal Justice Act have added a further purpose of youth sentencing, being the fashioning of sanctions that contribute to the long-term protection of the public.

In addition to these general purposes, the Act also prescribes a number of sentencing principles that must be taken into account by a sentencing judge. Some of these principles are:

  • the sentence should be the least restrictive sentence that is capable of achieving the purposes of sentencing;
  • a youth sentence must be one that is most likely to rehabilitate the youth and reintegrate him or her into society;
  • the youth sentence must promote a sense of responsibility in the young person and an acknowledgement of the harm done to the community and to victims of the offence.

Under the youth sentencing regime, it is permissible for the sentence to promote the objective of denouncing the youth’s unlawful conduct, as well as deterring the young person from committing further offences. However, the Supreme Court of Canada has held that general deterrence (deterrence to the public at large rather than the individual offender) is not a permissible objective of youth sentencing.

What Types of Sentences Apply to Young Offenders?

Section 42 of the Youth Criminal Justice Act prescribes the types of sentences that a youth court judge may impose on a young offender. Examples of the permissible youth sentences are:

  • a reprimand of the young person;
  • an absolute discharge;
  • a conditional discharge;
  • a fine;
  • a restitution/compensation order for property damage or loss of income;
  • compensation by way of personal or community services;
  • probation;
  • deferred custody and supervision orders;
  • custody and supervision orders;
  • straight custody.

Under the Youth Criminal Justice Act, youths may only be sentenced to custodial terms in certain circumstances. These are typically known as youth “gateways to custody.” Section 39 of the Act states that a youth court judge shall not commit a young person to custody:

39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

(a) the young person has committed a violent offence;

(b) the young person has failed to comply with non-custodial sentences;

(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

(d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

Even if one of the “gateways to custody” is available to a youth court judge, the Act further explains that a young person should only be sentenced to custody where the judge has considered all alternatives to custody raised at a sentencing hearing that are reasonable in the circumstances, and has determined that there is no reasonable alternative, or combinations of alternatives, that would accord with the principles and purposes of youth sentencing.

 


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