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Youth Criminal
Justice Act
2002, c. 1
An Act in respect of
criminal justice for young persons and to
amend and repeal other Acts
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[
Assented to
19th February, 2002
]
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Preamble
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WHEREAS members
of society share a responsibility to address
the developmental challenges and the needs
of young persons and to guide them into
adulthood;
WHEREAS communities,
families, parents and others concerned with
the development of young persons should,
through multi-disciplinary approaches, take
reasonable steps to prevent youth crime
by addressing its underlying causes, to
respond to the needs of young persons, and
to provide guidance and support to those
at risk of committing crimes;
WHEREAS information
about youth justice, youth crime and the
effectiveness of measures taken to address
youth crime should be publicly available;
WHEREAS Canada
is a party to the United Nations Convention
on the Rights of the Child and recognizes
that young persons have rights and freedoms,
including those stated in the
Canadian Charter
of Rights and Freedoms
and the
Canadian Bill
of Rights
,
and have special guarantees of their rights
and freedoms
;
AND WHEREAS Canadian
society should have a youth criminal justice
system that commands respect, takes into
account the interests of victims, fosters
responsibility and ensures accountability
through meaningful consequences and effective
rehabilitation and reintegration, and that
reserves its most serious intervention for
the most serious crimes and reduces the
over-reliance on incarceration for non-violent
young persons;
NOW, THEREFORE,
Her Majesty, by and with the advice and
consent of the Senate and House of Commons
of Canada, enacts as follows:
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SHORT TITLE
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Short title
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1. This
Act may be cited as the
Youth Criminal
Justice Act
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INTERPRETATION
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Definitions
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2. (1)
The definitions in this subsection apply
in this Act.
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"adult" adulte
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"adult" means a person
who is neither a young person nor a child.
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"adult sentence"
peine applicable aux adultes
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"adult sentence",
in the case of a young person who is found
guilty of an offence, means any sentence
that could be imposed on an adult who has
been convicted of the same offence.
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"Attorney General"
procureur general
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"Attorney General"
means the Attorney General as defined in
section 2 of the Criminal Code, read
as if the reference in that definition to
"proceedings" were a reference to "proceedings
or extrajudicial measures", and includes
an agent or delegate of the Attorney General.
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"child" enfant
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"child" means a person
who is or, in the absence of evidence to
the contrary, appears to be less than twelve
years old.
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"conference"
groupe consultatif
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"conference" means
a group of persons who are convened to give
advice in accordance with section 19.
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"confirmed delivery
service" service de messagerie
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"confirmed delivery
service" means certified or registered mail
or any other method of service that provides
proof of delivery.
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"custodial portion"
priode de garde
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"custodial portion",
with respect to a youth sentence imposed
on a young person under paragraph 42(2)(n),
(o), (q) or (r), means
the period of time, or the portion of the
young person's youth sentence, that must
be served in custody before he or she begins
to serve the remainder under supervision
in the community subject to conditions under
paragraph 42(2)(n) or under conditional
supervision under paragraph 42(2)(o),
(q) or (r).
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"disclosure"
communication
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"disclosure" means
the communication of information other than
by way of publication.
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"extrajudicial measures"
mesures extrajudiciaires
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"extrajudicial measures"
means measures other than judicial proceedings
under this Act used to deal with a young
person alleged to have committed an offence
and includes extrajudicial sanctions.
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"extrajudicial sanction"
sanction extrajudiciaire
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"extrajudicial sanction"
means a sanction that is part of a program
referred to in section 10.
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"offence"
infraction
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"offence" means an
offence created by an Act of Parliament
or by any regulation, rule, order, by-law
or ordinance made under an Act of Parliament
other than an ordinance of the Northwest
Territories or a law of the Legislature
of Yukon or the Legislature for Nunavut.
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"parent"
pre ou mre ou
pre et mre
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"parent" includes,
in respect of a young person, any person
who is under a legal duty to provide for
the young person or any person who has,
in law or in fact, the custody or control
of the young person, but does not include
a person who has the custody or control
of the young person by reason only of proceedings
under this Act.
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"pre-sentence report"
rapport prdcisionnel
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"pre-sentence report"
means a report on the personal and family
history and present environment of a young
person made in accordance with section 40.
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"presumptive offence"
infraction dsigne
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"presumptive offence"
means
(a) an offence
committed, or alleged to have been committed,
by a young person who has attained the age
of fourteen years, or, in a province where
the lieutenant governor in council has fixed
an age greater than fourteen years under
section 61, the age so fixed, under one
of the following provisions of the
Criminal
Code
:
(i) section 231 or 235
(first degree murder or second degree murder
within the meaning of section 231),
(ii) section 239 (attempt
to commit murder),
(iii) section 232, 234
or 236 (manslaughter), or
(iv) section 273 (aggravated
sexual assault); or
(b) a serious
violent offence for which an adult is liable
to imprisonment for a term of more than
two years committed, or alleged to have
been committed, by a young person after
the coming into force of section 62 (adult
sentence) and after the young person has
attained the age of fourteen years, or,
in a province where the lieutenant governor
in council has fixed an age greater than
fourteen years under section 61, the age
so fixed, if at the time of the commission
or alleged commission of the offence at
least two judicial determinations have been
made under subsection 42(9), at different
proceedings, that the young person has committed
a serious violent offence.
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"provincial director"
directeur provincial ou
directeur
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"provincial director"
means a person, a group or class of persons
or a body appointed or designated by or
under an Act of the legislature of a province
or by the lieutenant governor in council
of a province or his or her delegate to
perform in that province, either generally
or in a specific case, any of the duties
or functions of a provincial director under
this Act.
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"publication"
publication
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"publication" means
the communication of information by making
it known or accessible to the general public
through any means, including print, radio
or television broadcast, telecommunication
or electronic means.
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"record"
dossier
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"record" includes
any thing containing information, regardless
of its physical form or characteristics,
including microform, sound recording, videotape,
machine-readable record, and any copy of
any of those things, that is created or
kept for the purposes of this Act or for
the investigation of an offence that is
or could be prosecuted under this Act.
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"review board"
commission d'examen
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"review board" means
a review board referred to in subsection
87(2).
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"serious violent
offence"
infraction grave avec
violence
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"serious violent offence"
means an offence in the commission of which
a young person causes or attempts to cause
serious bodily harm.
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"young person"
adolescent
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"young person" means
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 and, if the context requires, includes
any person who is charged under this Act
with having committed an offence while he
or she was a young person or who is found
guilty of an offence under this Act.
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"youth custody facility"
lieu de garde
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"youth custody facility"
means a facility designated under subsection
85(2) for the placement of young persons
and, if so designated, includes a facility
for the secure restraint of young persons,
a community residential centre, a group
home, a child care institution and a forest
or wilderness camp.
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"youth justice court"
tribunal pour adolescents
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"youth justice court"
means a youth justice court referred to
in section 13.
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"youth justice court
judge" juge du tribunal pour adolescents
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"youth justice court
judge" means a youth justice court judge
referred to in section 13.
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"youth sentence"
peine spcifique
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"youth sentence" means
a sentence imposed under section 42, 51
or 59 or any of sections 94 to 96 and includes
a confirmation or a variation of that sentence.
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"youth worker"
dlgu la jeunesse
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"youth worker" means
any person appointed or designated, whether
by title of youth worker or probation officer
or by any other title, by or under an Act
of the legislature of a province or by the
lieutenant governor in council of a province
or his or her delegate to perform in that
province, either generally or in a specific
case, any of the duties or functions of
a youth worker under this Act.
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Words and expressions
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(2) Unless otherwise
provided, words and expressions used in
this Act have the same meaning as in the
Criminal Code.
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Descriptive cross-references
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(3) If, in any provision
of this Act, a reference to another provision
of this Act or a provision of any other
Act is followed by words in parentheses
that are or purport to be descriptive of
the subject-matter of the provision referred
to, those words form no part of the provision
in which they occur but are inserted for
convenience of reference only.
2002, c. 1, s.
2, c. 7, s. 274.
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DECLARATION OF PRINCIPLE
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Policy for Canada
with respect to young persons
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3. (1)
The following principles apply in this Act:
(a) the youth
criminal justice system is intended to
(i) prevent crime
by addressing the circumstances underlying
a young person's offending behaviour,
(ii) rehabilitate
young persons who commit offences and reintegrate
them into society, and
(iii) ensure that
a young person is subject to meaningful
consequences for his or her offence
in order to promote
the long-term protection of the public;
(b) the criminal
justice system for young persons must be
separate from that of adults and emphasize
the following:
(i) rehabilitation
and reintegration,
(ii) fair and proportionate
accountability that is consistent with the
greater dependency of young persons and
their reduced level of maturity,
(iii) enhanced procedural
protection to ensure that young persons
are treated fairly and that their rights,
including their right to privacy, are protected,
(iv) timely intervention
that reinforces the link between the offending
behaviour and its consequences, and
(v) the promptness
and speed with which persons responsible
for enforcing this Act must act, given young
persons' perception of time;
(c) 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; and
(d) special
considerations apply in respect of proceedings
against young persons and, in particular,
(i) young persons
have rights and freedoms in their own right,
such as a right to be heard in the course
of and to participate in the processes,
other than the decision to prosecute, that
lead to decisions that affect them, and
young persons have special guarantees of
their rights and freedoms,
(ii) victims should
be treated with courtesy, compassion and
respect for their dignity and privacy and
should suffer the minimum degree of inconvenience
as a result of their involvement with the
youth criminal justice system,
(iii) victims should
be provided with information about the proceedings
and given an opportunity to participate
and be heard, and
(iv) parents should
be informed of measures or proceedings involving
their children and encouraged to support
them in addressing their offending behaviour.
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Act to be liberally
construed
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(2) This Act shall
be liberally construed so as to ensure that
young persons are dealt with in accordance
with the principles set out in subsection
(1).
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PART 1
EXTRAJUDICIAL MEASURES
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Principles and
Objectives
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Declaration of principles
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4. The
following principles apply in this Part
in addition to the principles set out in
section 3:
(a) extrajudicial
measures are often the most appropriate
and effective way to address youth crime;
(b) extrajudicial
measures allow for effective and timely
interventions focused on correcting offending
behaviour;
(c) extrajudicial
measures are presumed to be adequate to
hold a young person accountable for his
or her offending behaviour if the young
person has committed a non-violent offence
and has not previously been found guilty
of an offence; and
(d) extrajudicial
measures should be used if they are adequate
to hold a young person accountable for his
or her offending behaviour and, if the use
of extrajudicial measures is consistent
with the principles set out in this section,
nothing in this Act precludes their use
in respect of a young person who
(i) has previously
been dealt with by the use of extrajudicial
measures, or
(ii) has previously
been found guilty of an offence.
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Objectives
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5. Extrajudicial
measures should be designed to
(a) provide
an effective and timely response to offending
behaviour outside the bounds of judicial
measures;
(b) encourage
young persons to acknowledge and repair
the harm caused to the victim and the community;
(c) encourage
families of young persons -- including extended
families where appropriate -- and the community
to become involved in the design and implementation
of those measures;
(d) provide
an opportunity for victims to participate
in decisions related to the measures selected
and to receive reparation; and
(e) respect
the rights and freedoms of young persons
and be proportionate to the seriousness
of the offence.
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Warnings, Cautions
and Referrals
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Warnings, cautions
and referrals
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6. (1)
A police officer shall, before starting
judicial proceedings or taking any other
measures under this Act against a young
person alleged to have committed an offence,
consider whether it would be sufficient,
having regard to the principles set out
in section 4, to take no further action,
warn the young person, administer a caution,
if a program has been established under
section 7, or, with the consent of the young
person, refer the young person to a program
or agency in the community that may assist
the young person not to commit offences.
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Saving
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(2) The failure of
a police officer to consider the options
set out in subsection (1) does not invalidate
any subsequent charges against the young
person for the offence.
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Police cautions
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7. The
Attorney General, or any other minister
designated by the lieutenant governor of
a province, may establish a program authorizing
the police to administer cautions to young
persons instead of starting judicial proceedings
under this Act.
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Crown cautions
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8. The
Attorney General may establish a program
authorizing prosecutors to administer cautions
to young persons instead of starting or
continuing judicial proceedings under this
Act.
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Evidence of measures
is inadmissible
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9. Evidence
that a young person has received a warning,
caution or referral mentioned in section
6, 7 or 8 or that a police officer has taken
no further action in respect of an offence,
and evidence of the offence, is inadmissible
for the purpose of proving prior offending
behaviour in any proceedings before a youth
justice court in respect of the young person.
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Extrajudicial Sanctions
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Extrajudicial sanctions
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10. (1)
An extrajudicial sanction may be used to
deal with a young person alleged to have
committed an offence only if the young person
cannot be adequately dealt with by a warning,
caution or referral mentioned in section
6, 7 or 8 because of the seriousness of
the offence, the nature and number of previous
offences committed by the young person or
any other aggravating circumstances.
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Conditions
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(2) An extrajudicial
sanction may be used only if
(a) it is part
of a program of sanctions that may be authorized
by the Attorney General or authorized by
a person, or a member of a class of persons,
designated by the lieutenant governor in
council of the province;
(b) the person
who is considering whether to use the extrajudicial
sanction is satisfied that it would be appropriate,
having regard to the needs of the young
person and the interests of society;
(c) the young
person, having been informed of the extrajudicial
sanction, fully and freely consents to be
subject to it;
(d) the young
person has, before consenting to be subject
to the extrajudicial sanction, been advised
of his or her right to be represented by
counsel and been given a reasonable opportunity
to consult with counsel;
(e) the young
person accepts responsibility for the act
or omission that forms the basis of the
offence that he or she is alleged to have
committed;
(f) there is,
in the opinion of the Attorney General,
sufficient evidence to proceed with the
prosecution of the offence; and
(g) the prosecution
of the offence is not in any way barred
at law.
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Restriction on use
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(3) An extrajudicial
sanction may not be used in respect of a
young person who
(a) denies participation
or involvement in the commission of the
offence; or
(b) expresses
the wish to have the charge dealt with by
a youth justice court.
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Admissions not admissible
in evidence
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(4) Any admission,
confession or statement accepting responsibility
for a given act or omission that is made
by a young person as a condition of being
dealt with by extrajudicial measures is
inadmissible in evidence against any young
person in civil or criminal proceedings.
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No bar to judicial
proceedings
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(5) The use of an extrajudicial
sanction in respect of a young person alleged
to have committed an offence is not a bar
to judicial proceedings under this Act,
but if a charge is laid against the young
person in respect of the offence,
(a) the youth
justice court shall dismiss the charge if
it is satisfied on a balance of probabilities
that the young person has totally complied
with the terms and conditions of the extrajudicial
sanction; and
(b) the youth
justice court may dismiss the charge if
it is satisfied on a balance of probabilities
that the young person has partially complied
with the terms and conditions of the extrajudicial
sanction and if, in the opinion of the court,
prosecution of the charge would be unfair
having regard to the circumstances and the
young person's performance with respect
to the extrajudicial sanction.
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Laying of information,
etc.
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(6) Subject to subsection
(5) and section 24 (private prosecutions
only with consent of Attorney General),
nothing in this section shall be construed
as preventing any person from laying an
information or indictment, obtaining the
issue or confirmation of any process or
proceeding with the prosecution of any offence
in accordance with law.
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Notice to parent
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11. If
a young person is dealt with by an extrajudicial
sanction, the person who administers the
program under which the sanction is used
shall inform a parent of the young person
of the sanction.
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Victim's right
to information
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12. If
a young person is dealt with by an extrajudicial
sanction, a police officer, the Attorney
General, the provincial director or any
organization established by a province to
provide assistance to victims shall, on
request, inform the victim of the identity
of the young person and how the offence
has been dealt with.
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PART 2
ORGANIZATION OF YOUTH CRIMINAL JUSTICE SYSTEM
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Youth Justice Court
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Designation of
youth justice court
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13. (1)
A youth justice court is any court that
may be established or designated by or under
an Act of the legislature of a province,
or designated by the Governor in Council
or the lieutenant governor in council of
a province, as a youth justice court for
the purposes of this Act, and a youth justice
court judge is a person who may be appointed
or designated as a judge of the youth justice
court or a judge sitting in a court established
or designated as a youth justice court.
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Deemed youth justice
court
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(2) When a young person
elects to be tried by a judge without a
jury, the judge shall be a judge as defined
in section 552 of the Criminal Code,
or if it is an offence set out in section
469 of that Act, the judge shall be a judge
of the superior court of criminal jurisdiction
in the province in which the election is
made. In either case, the judge is deemed
to be a youth justice court judge and the
court is deemed to be a youth justice court
for the purpose of the proceeding.
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Deemed youth justice
court
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(3) When a young person
elects or is deemed to have elected to be
tried by a court composed of a judge and
jury, the superior court of criminal jurisdiction
in the province in which the election is
made or deemed to have been made is deemed
to be a youth justice court for the purpose
of the proceeding, and the superior court
judge is deemed to be a youth justice court
judge.
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Court of record
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(4) A youth justice
court is a court of record.
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Exclusive jurisdiction
of youth justice court
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14. (1)
Despite any other Act of Parliament but
subject to the Contraventions Act
and the National Defence Act, a youth
justice court has exclusive jurisdiction
in respect of any offence alleged to have
been committed by a person while he or she
was a young person, and that person shall
be dealt with as provided in this Act.
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Orders
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(2) A youth justice
court has jurisdiction to make orders against
a young person under sections 810 (recognizance
-- fear of injury or damage), 810.01 (recognizance
-- fear of criminal organization offence)
and 810.2 (recognizance -- fear of serious
personal injury offence) of the
Criminal
Code
. If the young person fails or refuses
to enter into a recognizance referred to
in any of those sections, the court may
impose any one of the sanctions set out
in subsection 42(2) (youth sentences) except
that, in the case of an order under paragraph
42(2)(n) (custody and supervision
order), it shall not exceed thirty days.
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Prosecution prohibited
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(3) Unless the Attorney
General and the young person agree, no extrajudicial
measures shall be taken or judicial proceedings
commenced under this Act in respect of an
offence after the end of the time limit
set out in any other Act of Parliament or
any regulation made under it for the institution
of proceedings in respect of that offence.
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Continuation of
proceedings
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(4) Extrajudicial measures
taken or judicial proceedings commenced
under this Act against a young person may
be continued under this Act after the person
attains the age of eighteen years.
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Young persons over
the age of eighteen years
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(5) This Act applies
to persons eighteen years old or older who
are alleged to have committed an offence
while a young person.
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Powers of youth
justice court judge
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(6) For the purpose
of carrying out the provisions of this Act,
a youth justice court judge is a justice
and a provincial court judge and has the
jurisdiction and powers of a summary conviction
court under the Criminal Code.
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Powers of a judge
of a superior court
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(7) A judge of a superior
court of criminal jurisdiction, when deemed
to be a youth justice court judge for the
purpose of a proceeding, retains the jurisdiction
and powers of a superior court of criminal
jurisdiction.
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Contempt against
youth justice court
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15. (1)
Every youth justice court has the same power,
jurisdiction and authority to deal with
and impose punishment for contempt against
the court as may be exercised by the superior
court of criminal jurisdiction of the province
in which the court is situated.
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Jurisdiction of
youth justice court
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(2) A youth justice
court has jurisdiction in respect of every
contempt of court committed by a young person
against the youth justice court whether
or not committed in the face of the court,
and every contempt of court committed by
a young person against any other court otherwise
than in the face of that court.
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Concurrent jurisdiction
of youth justice court
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(3) A youth justice
court has jurisdiction in respect of every
contempt of court committed by a young person
against any other court in the face of that
court and every contempt of court committed
by an adult against the youth justice court
in the face of the youth justice court,
but nothing in this subsection affects the
power, jurisdiction or authority of any
other court to deal with or impose punishment
for contempt of court.
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Youth sentence --
contempt
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(4) When a youth justice
court or any other court finds a young person
guilty of contempt of court, it may impose
as a youth sentence any one of the sanctions
set out in subsection 42(2) (youth sentences),
or any number of them that are not inconsistent
with each other, but no other sentence.
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Section 708 of
Criminal Code applies in respect
of adults
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(5) Section 708 (contempt)
of the Criminal Code applies in respect
of proceedings under this section in youth
justice court against adults, with any modifications
that the circumstances require.
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Status of offender
uncertain
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16. When
a person is alleged to have committed an
offence during a period that includes the
date on which the person attains the age
of eighteen years, the youth justice court
has jurisdiction in respect of the offence
and shall, after putting the person to their
election under section 67 (adult sentence)
if applicable, and on finding the person
guilty of the offence,
(a) if it has
been proven that the offence was committed
before the person attained the age of eighteen
years, impose a sentence under this Act;
(b) if it has
been proven that the offence was committed
after the person attained the age of eighteen
years, impose any sentence that could be
imposed under the Criminal Code or
any other Act of Parliament on an adult
who has been convicted of the same offence;
and
(c) if it has
not been proven that the offence was committed
after the person attained the age of eighteen
years, impose a sentence under this Act.
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Youth justice court
may make rules
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17. (1)
The youth justice court for a province may,
subject to the approval of the lieutenant
governor in council of the province, establish
rules of court not inconsistent with this
Act or any other Act of Parliament or with
any regulations made under section 155 regulating
proceedings within the jurisdiction of the
youth justice court.
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Rules of court
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(2) Rules under subsection
(1) may be made
(a) generally
to regulate the duties of the officers of
the youth justice court and any other matter
considered expedient to attain the ends
of justice and carry into effect the provisions
of this Act;
(b) subject
to any regulations made under paragraph
155(b), to regulate the practice
and procedure in the youth justice court;
and
(c) to prescribe
forms to be used in the youth justice court
if they are not otherwise provided for by
or under this Act.
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Publication of rules
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(3) Rules of court
that are made under the authority of this
section shall be published in the appropriate
provincial gazette.
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Youth Justice Committees
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Youth justice committees
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18. (1)
The Attorney General of Canada or a province
or any other minister that the lieutenant
governor in council of the province may
designate may establish one or Read More ..mmittees
of citizens, to be known as youth justice
committees, to assist in any aspect of the
administration of this Act or in any programs
or services for young persons.
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Role of committee
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(2) The functions of
a youth justice committee may include the
following:
(a) in the case
of a young person alleged to have committed
an offence,
(i) giving advice
on the appropriate extrajudicial measure
to be used in respect of the young person,
(ii) supporting
any victim of the alleged offence by soliciting
his or her concerns and facilitating the
reconciliation of the victim and the young
person,
(iii) ensuring that
community support is available to the young
person by arranging for the use of services
from within the community, and enlisting
members of the community to provide short-term
mentoring and supervision, and
(iv) when the young
person is also being dealt with by a child
protection agency or a community group,
helping to coordinate the interaction of
the agency or group with the youth criminal
justice system;
(b) advising
the federal and provincial governments on
whether the provisions of this Act that
grant rights to young persons, or provide
for the protection of young persons, are
being complied with;
(c) advising
the federal and provincial governments on
policies and procedures related to the youth
criminal justice system;
(d) providing
information to the public in respect of
this Act and the youth criminal justice
system;
(e) acting as
a conference; and
(f) any other
functions assigned by the person who establishes
the committee.
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|
Conferences
|
|
Conferences may
be convened
|
19. (1)
A youth justice court judge, the provincial
director, a police officer, a justice of
the peace, a prosecutor or a youth worker
may convene or cause to be convened a conference
for the purpose of making a decision required
to be made under this Act.
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|
Mandate of a conference
|
(2) The mandate of
a conference may be, among other things,
to give advice on appropriate extrajudicial
measures, conditions for judicial interim
release, sentences, including the review
of sentences, and reintegration plans.
|
|
Rules for conferences
|
(3) The Attorney General
or any other minister designated by the
lieutenant governor in council of a province
may establish rules for the convening and
conducting of conferences other than conferences
convened or caused to be convened by a youth
justice court judge or a justice of the
peace.
|
|
Rules to apply
|
(4) In provinces where
rules are established under subsection (3),
the conferences to which those rules apply
must be convened and conducted in accordance
with those rules.
|
|
Justices of the
Peace
|
|
Certain proceedings
may be taken before justices
|
20. (1)
Any proceeding that may be carried out before
a justice under the Criminal Code,
other than a plea, a trial or an adjudication,
may be carried out before a justice in respect
of an offence alleged to have been committed
by a young person, and any process that
may be issued by a justice under the Criminal Code may be issued by a justice
in respect of an offence alleged to have
been committed by a young person.
|
|
Orders under section
810 of Criminal Code
|
(2) A justice has jurisdiction
to make an order under section 810 (recognizance
-- fear of injury or damage) of the
Criminal
Code
in respect of a young person. If
the young person fails or refuses to enter
into a recognizance referred to in that
section, the justice shall refer the matter
to a youth justice court.
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|
Clerks of the Court
|
|
Powers of clerks
|
21. In
addition to any powers conferred on a clerk
of a court by the Criminal Code,
a clerk of the youth justice court may exercise
the powers ordinarily exercised by a clerk
of a court, and, in particular, may
(a) administer
oaths or solemn affirmations in all matters
relating to the business of the youth justice
court; and
(b) in the absence
of a youth justice court judge, exercise
all the powers of a youth justice court
judge relating to adjournment.
|
|
Provincial Directors
|
|
Powers, duties
and functions of provincial directors
|
22. The
provincial director may authorize any person
to exercise the powers or perform the duties
or functions of the provincial director
under this Act, in which case the powers,
duties or functions are deemed to have been
exercised or performed by the provincial
director.
|
|
PART 3
JUDICIAL MEASURES
|
|
Consent to Prosecute
|
|
Pre-charge screening
|
23. (1)
The Attorney General may establish a program
of pre-charge screening that sets out the
circumstances in which the consent of the
Attorney General must be obtained before
a young person is charged with an offence.
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|
Pre-charge screening
program
|
(2) Any program of
pre-charge screening of young persons that
is established under an Act of the legislature
of a province or by a directive of a provincial
government, and that is in place before
the coming into force of this section, is
deemed to be a program of pre-charge screening
for the purposes of subsection (1).
|
|
Private prosecutions
|
24. No
prosecutions may be conducted by a prosecutor
other than the Attorney General without
the consent of the Attorney General.
|
|
Right to Counsel
|
|
Right to counsel
|
25. (1)
A young person has the right to retain and
instruct counsel without delay, and to exercise
that right personally, at any stage of proceedings
against the young person and before and
during any consideration of whether, instead
of starting or continuing judicial proceedings
against the young person under this Act,
to use an extrajudicial sanction to deal
with the young person.
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|
Arresting officer
to advise young person of right to counsel
|
(2) Every young person
who is arrested or detained shall, on being
arrested or detained, be advised without
delay by the arresting officer or the officer
in charge, as the case may be, of the right
to retain and instruct counsel, and be given
an opportunity to obtain counsel.
|
|
Justice, youth justice
court or review board to advise young person
of right to counsel
|
(3) When a young person
is not represented by counsel
(a) at a hearing
at which it will be determined whether to
release the young person or detain the young
person in custody prior to sentencing,
(b) at a hearing
held under section 71 (hearing -- adult
sentences),
(c) at trial,
(d) at any proceedings
held under subsection 98(3) (continuation
of custody), 103(1) (review by youth justice
court), 104(1) (continuation of custody),
105(1) (conditional supervision) or 109(1)
(review of decision),
(e) at a review
of a youth sentence held before a youth
justice court under this Act, or
(f) at a review
of the level of custody under section 87,
the justice or
youth justice court before which the hearing,
trial or review is held, or the review board
before which the review is held, shall advise
the young person of the right to retain
and instruct counsel and shall give the
young person a reasonable opportunity to
obtain counsel.
|
|
Trial, hearing or
review before youth justice court or review
board
|
(4) When a young person
at trial or at a hearing or review referred
to in subsection (3) wishes to obtain counsel
but is unable to do so, the youth justice
court before which the hearing, trial or
review is held or the review board before
which the review is held
(a) shall, if
there is a legal aid program or an assistance
program available in the province where
the hearing, trial or review is held, refer
the young person to that program for the
appointment of counsel; or
(b) if no legal
aid program or assistance program is available
or the young person is unable to obtain
counsel through the program, may, and on
the request of the young person shall, direct
that the young person be represented by
counsel.
|
|
Appointment of counsel
|
(5) When a direction
is made under paragraph (4)(b) in
respect of a young person, the Attorney
General shall appoint counsel, or cause
counsel to be appointed, to represent the
young person.
|
|
Release hearing
before justice
|
(6) When a young person,
at a hearing referred to in paragraph (3)(a)
that is held before a justice who is not
a youth justice court judge, wishes to obtain
counsel but is unable to do so, the justice
shall
(a) if there
is a legal aid program or an assistance
program available in the province where
the hearing is held,
(i) refer the young
person to that program for the appointment
of counsel, or
(ii) refer the matter
to a youth justice court to be dealt with
in accordance with paragraph (4)(a)
or (b); or
(b) if no legal
aid program or assistance program is available
or the young person is unable to obtain
counsel through the program, refer the matter
without delay to a youth justice court to
be dealt with in accordance with paragraph
(4)(b).
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|
Young person may
be assisted by adult
|
(7) When a young person
is not represented by counsel at trial or
at a hearing or review referred to in subsection
(3), the justice before whom or the youth
justice court or review board before which
the proceedings are held may, on the request
of the young person, allow the young person
to be assisted by an adult whom the justice,
court or review board considers to be suitable.
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|
Counsel independent
of parents
|
(8) If it appears to
a youth justice court judge or a justice
that the interests of a young person and
the interests of a parent are in conflict
or that it would be in the best interests
of the young person to be represented by
his or her own counsel, the judge or justice
shall ensure that the young person is represented
by counsel independent of the parent.
|
|
Statement of right
to counsel
|
(9) A statement that
a young person has the right to be represented
by counsel shall be included in
(a) any appearance
notice or summons issued to the young person;
(b) any warrant
to arrest the young person;
(c) any promise
to appear given by the young person;
(d) any undertaking
or recognizance entered into before an officer
in charge by the young person;
(e) any notice
given to the young person in relation to
any proceedings held under subsection 98(3)
(continuation of custody), 103(1) (review
by youth justice court), 104(1) (continuation
of custody), 105(1) (conditional supervision)
or 109(1) (review of decision); or
(f) any notice
of a review of a youth sentence given to
the young person.
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|
Recovery of costs
of counsel
|
(10) Nothing in this
Act prevents the lieutenant governor in
council of a province or his or her delegate
from establishing a program to authorize
the recovery of the costs of a young person's
counsel from the young person or the parents
of the young person. The costs may be recovered
only after the proceedings are completed
and the time allowed for the taking of an
appeal has expired or, if an appeal is taken,
all proceedings in respect of the appeal
have been completed.
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|
Exception for persons
over the age of twenty
|
(11) Subsections (4)
to (9) do not apply to a person who is alleged
to have committed an offence while a young
person, if the person has attained the age
of twenty years at the time of his or her
first appearance before a youth justice
court in respect of the offence; however,
this does not restrict any rights that a
person has under the law applicable to adults.
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|
Notices to Parents
|
|
Notice in case
of arrest or detention
|
26. (1)
Subject to subsection (4), if a young person
is arrested and detained in custody pending
his or her appearance in court, the officer
in charge at the time the young person is
detained shall, as soon as possible, give
or cause to be given to a parent of the
young person, orally or in writing, notice
of the arrest stating the place of detention
and the reason for the arrest.
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|
Notice in other
cases
|
(2) Subject to subsection
(4), if a summons or an appearance notice
is issued in respect of a young person,
the person who issued the summons or appearance
notice, or, if a young person is released
on giving a promise to appear or entering
into an undertaking or recognizance, the
officer in charge, shall, as soon as possible,
give or cause to be given to a parent of
the young person notice in writing of the
summons, appearance notice, promise to appear,
undertaking or recognizance.
|
|
Notice to parent
in case of ticket
|
(3) Subject to subsection
(4), a person who serves a ticket under
the Contraventions Act on a young
person, other than a ticket served for a
contravention relating to parking a vehicle,
shall, as soon as possible, give or cause
to be given notice in writing of the ticket
to a parent of the young person.
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|
Notice to relative
or other adult
|
(4) If the whereabouts
of the parents of a young person are not
known or it appears that no parent is available,
a notice under this section may be given
to an adult relative of the young person
who is known to the young person and is
likely to assist the young person or, if
no such adult relative is available, to
any other adult who is known to the young
person and is likely to assist the young
person and who the person giving the notice
considers appropriate.
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|
Notice on direction
of youth justice court judge or justice
|
(5) If doubt exists
as to the person to whom a notice under
this section should be given, a youth justice
court judge or, if a youth justice court
judge is, having regard to the circumstances,
not reasonably available, a justice may
give directions as to the person to whom
the notice should be given, and a notice
given in accordance with those directions
is sufficient notice for the purposes of
this section.
|
|
Contents of notice
|
(6) Any notice under
this section shall, in addition to any other
requirements under this section, include
(a) the name
of the young person in respect of whom it
is given;
(b) the charge
against the young person and, except in
the case of a notice of a ticket served
under the Contraventions Act, the
time and place of appearance; and
(c) a statement
that the young person has the right to be
represented by counsel.
|
|
Notice of ticket
under Contraventions Act
|
(7) A notice under
subsection (3) shall include a copy of the
ticket.
|
|
Service of notice
|
(8) Subject to subsections
(10) and (11), a notice under this section
that is given in writing may be served personally
or be sent by confirmed delivery service.
|
|
Proceedings not
invalid
|
(9) Subject to subsections
(10) and (11), failure to give a notice
in accordance with this section does not
affect the validity of proceedings under
this Act.
|
|
Exception
|
(10) Failure to give
a notice under subsection (2) in accordance
with this section in any case renders invalid
any subsequent proceedings under this Act
relating to the case unless
(a) a parent
of the young person attends court with the
young person; or
(b) a youth
justice court judge or a justice before
whom proceedings are held against the young
person
(i) adjourns the
proceedings and orders that the notice be
given in the manner and to the persons that
the judge or justice directs, or
(ii) dispenses with
the notice if the judge or justice is of
the opinion that, having regard to the circumstances,
the notice may be dispensed with.
|
|
Where notice is
not served
|
(11) Where there has
been a failure to give a notice under subsection
(1) or (3) in accordance with this section
and none of the persons to whom the notice
may be given attends court with the young
person, a youth justice court judge or a
justice before whom proceedings are held
against the young person may
(a) adjourn
the proceedings and order that the notice
be given in the manner and to the persons
that the judge or justice directs; or
(b) dispense
with the notice if the judge or justice
is of the opinion that, having regard to
the circumstances, the notice may be dispensed
with.
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|
Exception for persons
over the age of twenty
|
(12) This section does
not apply to a person who is alleged to
have committed an offence while a young
person, if the person has attained the age
of twenty years at the time of his or her
first appearance before a youth justice
court in respect of the offence.
|
|
Order requiring
attendance of parent
|
27. (1)
If a parent does not attend proceedings
held before a youth justice court in respect
of a young person, the court may, if in
its opinion the presence of the parent is
necessary or in the best interests of the
young person, by order in writing require
the parent to attend at any stage of the
proceedings.
|
|
No order in ticket
proceedings
|
(2) Subsection (1)
does not apply in proceedings commenced
by filing a ticket under the
Contraventions
Act
.
|
|
Service of order
|
(3) A copy of the order
shall be served by a peace officer or by
a person designated by a youth justice court
by delivering it personally to the parent
to whom it is directed, unless the youth
justice court authorizes service by confirmed
delivery service.
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|
Failure to attend
|
(4) A parent who is
ordered to attend a youth justice court
under subsection (1) and who fails without
reasonable excuse, the proof of which lies
on the parent, to comply with the order
(a) is guilty
of contempt of court;
(b) may be dealt
with summarily by the court; and
(c) is liable
to the punishment provided for in the Criminal Code for a summary conviction
offence.
|
|
Warrant to arrest
parent
|
(5) If a parent who
is ordered to attend a youth justice court
under subsection (1) does not attend when
required by the order or fails to remain
in attendance as required and it is proved
that a copy of the order was served on the
parent, a youth justice court may issue
a warrant to compel the attendance of the
parent.
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|
Detention before
Sentencing
|
|
Application of
Part XVI of Criminal Code
|
28. Except
to the extent that they are inconsistent
with or excluded by this Act, the provisions
of Part XVI (compelling appearance of an
accused and interim release) of the
Criminal
Code
apply to the detention and release
of young persons under this Act.
|
|
Detention as social
measure prohibited
|
29. (1)
A youth justice court judge or a justice
shall not detain a young person in custody
prior to being sentenced as a substitute
for appropriate child protection, mental
health or other social measures.
|
|
Detention presumed
unnecessary
|
(2) In considering
whether the detention of a young person
is necessary for the protection or safety
of the public under paragraph 515(10)(b)
(substantial likelihood -- commit an offence
or interfere with the administration of
justice) of the Criminal Code, a
youth justice court or a justice shall presume
that detention is not necessary under that
paragraph if the young person could not,
on being found guilty, be committed to custody
on the grounds set out in paragraphs 39(1)(a)
to (c) (restrictions on committal
to custody).
|
|
Designated place
of temporary detention
|
30. (1)
Subject to subsection (7), a young person
who is arrested and detained prior to being
sentenced, or who is detained in accordance
with a warrant issued under subsection 59(6)
(compelling appearance for review of sentence),
shall be detained in any place of temporary
detention that may be designated by the
lieutenant governor in council of the province
or his or her delegate or in a place within
a class of places so designated.
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|
Exception
|
(2) A young person
who is detained in a place of temporary
detention under subsection (1) may, in the
course of being transferred from that place
to the court or from the court to that place,
be held under the supervision and control
of a peace officer.
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|
Detention separate
from adults
|
(3) A young person
referred to in subsection (1) shall be held
separate and apart from any adult who is
detained or held in custody unless a youth
justice court judge or a justice is satisfied
that, having regard to the best interests
of the young person,
(a) the young
person cannot, having regard to his or her
own safety or the safety of others, be detained
in a place of detention for young persons;
or
(b) no place
of detention for young persons is available
within a reasonable distance.
|
|
Transfer to adult
facility
|
(4) When a young person
is detained under subsection (1), the youth
justice court may, on application of the
provincial director made at any time after
the young person attains the age of eighteen
years, after giving the young person an
opportunity to be heard, authorize the provincial
director to direct, despite subsection (3),
that the young person be temporarily detained
in a provincial correctional facility for
adults, if the court considers it to be
in the best interests of the young person
or in the public interest.
|
|
When young person
is twenty years old or older
|
(5) When a young person
is twenty years old or older at the time
his or her temporary detention under subsection
(1) begins, the young person shall, despite
subsection (3), be temporarily detained
in a provincial correctional facility for
adults.
|
|
Transfer by provincial
director
|
(6) A young person
who is detained in custody under subsection
(1) may, during the period of detention,
be transferred by the provincial director
from one place of temporary detention to
another.
|
|
Exception relating
to temporary detention
|
(7) Subsections (1)
and (3) do not apply in respect of any temporary
restraint of a young person under the supervision
and control of a peace officer after arrest,
but a young person who is so restrained
shall be transferred to a place of temporary
detention referred to in subsection (1)
as soon as is practicable, and in no case
later than the first reasonable opportunity
after the appearance of the young person
before a youth justice court judge or a
justice under section 503 of the
Criminal
Code
.
|
|
Authorization of
provincial authority for detention
|
(8) In any province
for which the lieutenant governor in council
has designated a person or a group of persons
whose authorization is required, either
in all circumstances or in circumstances
specified by the lieutenant governor in
council, before a young person who has been
arrested may be detained in accordance with
this section, no young person shall be so
detained unless the authorization is obtained.
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|
Determination by
provincial authority of place of detention
|
(9) In any province
for which the lieutenant governor in council
has designated a person or a group of persons
who may determine the place where a young
person who has been arrested may be detained
in accordance with this section, no young
person may be so detained in a place other
than the one so determined.
|
|
Placement of young
person in care of responsible person
|
31. (1)
A young person who has been arrested may
be placed in the care of a responsible person
instead of being detained in custody if
a youth justice court or a justice is satisfied
that
(a) the young
person would, but for this subsection, be
detained in custody under section 515 (judicial
interim release) of the Criminal Code;
(b) the person
is willing and able to take care of and
exercise control over the young person;
and
(c) the young
person is willing to be placed in the care
of that person.
|
|
Inquiry as to availability
of a responsible person
|
(2) If a young person
would, in the absence of a responsible person,
be detained in custody, the youth justice
court or the justice shall inquire as to
the availability of a responsible person
and whether the young person is willing
to be placed in that person's care.
|
|
Condition of placement
|
(3) A young person
shall not be placed in the care of a person
under subsection (1) unless
(a) that person
undertakes in writing to take care of and
to be responsible for the attendance of
the young person in court when required
and to comply with any other conditions
that the youth justice court judge or the
justice may specify; and
(b) the young
person undertakes in writing to comply with
the arrangement and to comply with any other
conditions that the youth justice court
judge or the justice may specify.
|
|
Removing young person
from care
|
(4) A young person,
a person in whose care a young person has
been placed or any other person may, by
application in writing to a youth justice
court judge or a justice, apply for an order
under subsection (5) if
(a) the person
in whose care the young person has been
placed is no longer willing or able to take
care of or exercise control over the young
person; or
(b) it is, for
any other reason, no longer appropriate
that the young person remain in the care
of the person with whom he or she has been
placed.
|
|
Order
|
(5) When a youth justice
court judge or a justice is satisfied that
a young person should not remain in the
custody of the person in whose care he or
she was placed under subsection (1), the
judge or justice shall
(a) make an
order relieving the person and the young
person of the obligations undertaken under
subsection (3); and
(b) issue a
warrant for the arrest of the young person.
|
|
Effect of arrest
|
(6) If a young person
is arrested in accordance with a warrant
issued under paragraph (5)(b), the
young person shall be taken before a youth
justice court judge or a justice without
delay and dealt with under this section
and sections 28 to 30.
|
|
Appearance
|
|
Appearance before
judge or justice
|
32. (1)
A young person against whom an information
or indictment is laid must first appear
before a youth justice court judge or a
justice, and the judge or justice shall
(a) cause the
information or indictment to be read to
the young person;
(b) if the young
person is not represented by counsel, inform
the young person of the right to retain
and instruct counsel;
(c) if notified
under subsection 64(2) (intention to seek
adult sentence) or if section 16 (status
of accused uncertain) applies, inform the
young person that the youth justice court
might, if the young person is found guilty,
order that an adult sentence be imposed;
and
(d) if the young
person is charged with having committed
an offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1), inform the young person
in the following words of the consequences
of being charged with such an offence:
An adult sentence
will be imposed if you are found guilty
unless the court orders that you are not
liable to an adult sentence and that a youth
sentence must be imposed.
|
|
Waiver
|
(2) A young person
may waive the requirements of subsection
(1) if the young person is represented by
counsel and counsel advises the court that
the young person has been informed of that
provision.
|
|
Young person not
represented by counsel
|
(3) When a young person
is not represented by counsel, the youth
justice court, before accepting a plea,
shall
(a) satisfy
itself that the young person understands
the charge;
(b) if the young
person is liable to an adult sentence, explain
to the young person the consequences of
being liable to an adult sentence and the
procedure by which the young person may
apply for an order that a youth sentence
be imposed; and
(c) explain
that the young person may plead guilty or
not guilty to the charge or, if subsection
67(1) (election of court for trial -- adult
sentence) or (3) (election of court for
trial in Nunavut -- adult sentence) applies,
explain that the young person may elect
to be tried by a youth justice court judge
without a jury and without having a preliminary
inquiry, or to have a preliminary inquiry
and be tried by a judge without a jury,
or to have a preliminary inquiry and be
tried by a court composed of a judge and
jury.
|
|
If youth justice
court not satisfied
|
(4) If the youth justice
court is not satisfied that a young person
understands the charge, the court shall,
unless the young person must be put to his
or her election under subsection 67(1) (election
of court for trial -- adult sentence) or,
with respect to Nunavut, subsection 67(3)
(election of court for trial in Nunavut
-- adult sentence), enter a plea of not
guilty on behalf of the young person and
proceed with the trial in accordance with
subsection 36(2) (young person pleads not
guilty).
|
|
If youth justice
court not satisfied
|
(5) If the youth justice
court is not satisfied that a young person
understands the matters set out in subsection
(3), the court shall direct that the young
person be represented by counsel.
|
|
Release from or
Detention in Custody
|
|
Application for
release from or detention in custody
|
33. (1)
If an order is made under section 515 (judicial
interim release) of the Criminal Code
in respect of a young person by a justice
who is not a youth justice court judge,
an application may, at any time after the
order is made, be made to a youth justice
court for the release from or detention
in custody of the young person, as the case
may be, and the youth justice court shall
hear the matter as an original application.
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|
Notice to prosecutor
|
(2) An application
under subsection (1) for release from custody
shall not be heard unless the young person
has given the prosecutor at least two clear
days notice in writing of the application.
|
|
Notice to young
person
|
(3) An application
under subsection (1) for detention in custody
shall not be heard unless the prosecutor
has given the young person at least two
clear days notice in writing of the application.
|
|
Waiver of notice
|
(4) The requirement
for notice under subsection (2) or (3) may
be waived by the prosecutor or by the young
person or his or her counsel, as the case
may be.
|
|
Application for
review under section 520 or 521 of
Criminal
Code
|
(5) An application
under section 520 or 521 of the
Criminal
Code
for a review of an order made in
respect of a young person by a youth justice
court judge who is a judge of a superior
court shall be made to a judge of the court
of appeal.
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|
Nunavut
|
(6) Despite subsection
(5), an application under section 520 or
521 of the Criminal Code for a review
of an order made in respect of a young person
by a youth justice court judge who is a
judge of the Nunavut Court of Justice shall
be made to a judge of that court.
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|
No review
|
(7) No application
may be made under section 520 or 521 of
the Criminal Code for a review of
an order made in respect of a young person
by a justice who is not a youth justice
court judge.
|
|
Interim release
by youth justice court judge only
|
(8) If a young person
against whom proceedings have been taken
under this Act is charged with an offence
referred to in section 522 of the
Criminal
Code
, a youth justice court judge, but
no other court, judge or justice, may release
the young person from custody under that
section.
|
|
Review by court
of appeal
|
(9) A decision made
by a youth justice court judge under subsection
(8) may be reviewed in accordance with section
680 of the Criminal Code and that
section applies, with any modifications
that the circumstances require, to any decision
so made.
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|
Medical and Psychological
Reports
|
|
Medical or psychological
assessment
|
34. (1)
A youth justice court may, at any stage
of proceedings against a young person, by
order require that the young person be assessed
by a qualified person who is required to
report the results in writing to the court,
(a) with the
consent of the young person and the prosecutor;
or
(b) on its own
motion or on application of the young person
or the prosecutor, if the court believes
a medical, psychological or psychiatric
report in respect of the young person is
necessary for a purpose mentioned in paragraphs
(2)(a) to (g) and
(i) the court has
reasonable grounds to believe that the young
person may be suffering from a physical
or mental illness or disorder, a psychological
disorder, an emotional disturbance, a learning
disability or a mental disability,
(ii) the young person's
history indicates a pattern of repeated
findings of guilt under this Act or the
Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985,
or
(iii) the young
person is alleged to have committed a serious
violent offence.
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|
Purpose of assessment
|
(2) A youth justice
court may make an order under subsection
(1) in respect of a young person for the
purpose of
(a) considering
an application under section 33 (release
from or detention in custody);
(b) making its
decision on an application heard under section
71 (hearing -- adult sentences);
(c) making or
reviewing a youth sentence;
(d) considering
an application under subsection 104(1) (continuation
of custody);
(e) setting
conditions under subsection 105(1) (conditional
supervision);
(f) making an
order under subsection 109(2) (conditional
supervision); or
(g) authorizing
disclosure under subsection 127(1) (information
about a young person).
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|
Custody for assessment
|
(3) Subject to subsections
(4) and (6), for the purpose of an assessment
under this section, a youth justice court
may remand a young person to any custody
that it directs for a period not exceeding
thirty days.
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|
Presumption against
custodial remand
|
(4) A young person
shall not be remanded in custody in accordance
with an order made under subsection (1)
unless
(a) the youth
justice court is satisfied that
(i) on the evidence
custody is necessary to conduct an assessment
of the young person, or
(ii) on the evidence
of a qualified person detention of the young
person in custody is desirable to conduct
the assessment of the young person, and
the young person consents to custody; or
(b) the young
person is required to be detained in custody
in respect of any other matter or by virtue
of any provision of the Criminal Code.
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|
Report of qualified
person in writing
|
(5) For the purposes
of paragraph (4)(a), if the prosecutor
and the young person agree, evidence of
a qualified person may be received in the
form of a report in writing.
|
|
Application to vary
assessment order if circumstances change
|
(6) A youth justice
court may, at any time while an order made
under subsection (1) is in force, on cause
being shown, vary the terms and conditions
specified in the order in any manner that
the court considers appropriate in the circumstances.
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|
Disclosure of report
|
(7) When a youth justice
court receives a report made in respect
of a young person under subsection (1),
(a) the court
shall, subject to subsection (9), cause
a copy of the report to be given to
(i) the young person,
(ii) any parent
of the young person who is in attendance
at the proceedings against the young person,
(iii) any counsel
representing the young person, and
(iv) the prosecutor;
and
(b) the court
may cause a copy of the report to be given
to
(i) a parent of
the young person who is not in attendance
at the proceedings if the parent is, in
the opinion of the court, taking an active
interest in the proceedings, or
(ii) despite subsection
119(6) (restrictions respecting access to
certain records), the provincial director,
or the director of the provincial correctional
facility for adults or the penitentiary
at which the young person is serving a youth
sentence, if, in the opinion of the court,
withholding the report would jeopardize
the safety of any person.
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|
Cross-examination
|
(8) When a report is
made in respect of a young person under
subsection (1), the young person, his or
her counsel or the adult assisting the young
person under subsection 25(7) and the prosecutor
shall, subject to subsection (9), on application
to the youth justice court, be given an
opportunity to cross-examine the person
who made the report.
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|
Non-disclosure in
certain cases
|
(9) A youth justice
court shall withhold all or part of a report
made in respect of a young person under
subsection (1) from a private prosecutor,
if disclosure of the report or part, in
the opinion of the court, is not necessary
for the prosecution of the case and might
be prejudicial to the young person.
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|
Non-disclosure in
certain cases
|
(10) A youth justice
court shall withhold all or part of a report
made in respect of a young person under
subsection (1) from the young person, the
young person's parents or a private prosecutor
if the court is satisfied, on the basis
of the report or evidence given in the absence
of the young person, parents or private
prosecutor by the person who made the report,
that disclosure of the report or part would
seriously impair the treatment or recovery
of the young person, or would be likely
to endanger the life or safety of, or result
in serious psychological harm to, another
person.
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|
Exception -- interests
of justice
|
(11) Despite subsection
(10), the youth justice court may release
all or part of the report to the young person,
the young person's parents or the private
prosecutor if the court is of the opinion
that the interests of justice make disclosure
essential.
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|
Report to be part
of record
|
(12) A report made
under subsection (1) forms part of the record
of the case in respect of which it was requested.
|
|
Disclosure by qualified
person
|
(13) Despite any other
provision of this Act, a qualified person
who is of the opinion that a young person
held in detention or committed to custody
is likely to endanger his or her own life
or safety or to endanger the life of, or
cause bodily harm to, another person may
immediately so advise any person who has
the care and custody of the young person
whether or not the same information is contained
in a report made under subsection (1).
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|
Definition of "qualified
person"
|
(14) In this section,
"qualified person" means a person duly qualified
by provincial law to practice medicine or
psychiatry or to carry out psychological
examinations or assessments, as the circumstances
require, or, if no such law exists, a person
who is, in the opinion of the youth justice
court, so qualified, and includes a person
or a member of a class of persons designated
by the lieutenant governor in council of
a province or his or her delegate.
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|
Referral to Child
Welfare Agency
|
|
Referral to child
welfare agency
|
35. In
addition to any order that it is authorized
to make, a youth justice court may, at any
stage of proceedings against a young person,
refer the young person to a child welfare
agency for assessment to determine whether
the young person is in need of child welfare
services.
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|
Adjudication
|
|
When young person
pleads guilty
|
36. (1)
If a young person pleads guilty to an offence
charged against the young person and the
youth justice court is satisfied that the
facts support the charge, the court shall
find the young person guilty of the offence.
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|
When young person
pleads not guilty
|
(2) If a young person
charged with an offence pleads not guilty
to the offence or pleads guilty but the
youth justice court is not satisfied that
the facts support the charge, the court
shall proceed with the trial and shall,
after considering the matter, find the young
person guilty or not guilty or make an order
dismissing the charge, as the case may be.
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|
Appeals
|
|
Appeals
|
37. (1)
An appeal in respect of an indictable offence
or an offence that the Attorney General
elects to proceed with as an indictable
offence lies under this Act in accordance
with Part XXI (appeals -- indictable offences)
of the Criminal Code, which Part
applies with any modifications that the
circumstances require.
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|
Appeals for contempt
of court
|
(2) A finding of guilt
under section 15 for contempt of court or
a sentence imposed in respect of the finding
may be appealed as if the finding were a
conviction or the sentence were a sentence
in a prosecution by indictment.
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|
Appeal
|
(3) Section 10 of the
Criminal Code applies if a person
is convicted of contempt of court under
subsection 27(4) (failure of parent to attend
court).
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|
Appeals to be heard
together
|
(4) A judicial determination
under subsection 42(9) (judicial determination
of serious violent offence), or an order
under subsection 72(1) (court order -- adult
or youth sentence), 75(3) (ban on publication)
or 76(1) (placement when subject to adult
sentence), may be appealed as part of the
sentence and, unless the court to which
the appeal is taken otherwise orders, if
more than one of these is appealed they
must be part of the same appeal proceeding.
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|
Appeals for summary
conviction offences
|
(5) An appeal in respect
of an offence punishable on summary conviction
or an offence that the Attorney General
elects to proceed with as an offence punishable
on summary conviction lies under this Act
in accordance with Part XXVII (summary conviction
offences) of the Criminal Code, which
Part applies with any modifications that
the circumstances require.
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|
Appeals where offences
are tried jointly
|
(6) An appeal in respect
of one or Read More ..dictable offences and one
or Read More ..mmary conviction offences that
are tried jointly or in respect of which
youth sentences are jointly imposed lies
under this Act in accordance with Part XXI
(appeals -- indictable offences) of the
Criminal Code, which Part applies
with any modifications that the circumstances
require.
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|
Deemed election
|
(7) For the purpose
of appeals under this Act, if no election
is made in respect of an offence that may
be prosecuted by indictment or proceeded
with by way of summary conviction, the Attorney
General is deemed to have elected to proceed
with the offence as an offence punishable
on summary conviction.
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|
If the youth justice
court is a superior court
|
(8) In any province
where the youth justice court is a superior
court, an appeal under subsection (5) shall
be made to the court of appeal of the province.
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|
Nunavut
|
(9) Despite subsection
(8), if the Nunavut Court of Justice is
acting as a youth justice court, an appeal
under subsection (5) shall be made to a
judge of the Nunavut Court of Appeal, and
an appeal of that judge's decision shall
be made to the Nunavut Court of Appeal in
accordance with section 839 of the
Criminal
Code
.
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|
Appeal to the Supreme
Court of Canada
|
(10) No appeal lies
under subsection (1) from a judgment of
the court of appeal in respect of a finding
of guilt or an order dismissing an information
or indictment to the Supreme Court of Canada
unless leave to appeal is granted by the
Supreme Court of Canada.
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|
No appeal from youth
sentence on review
|
(11) No appeal lies
from a youth sentence under section 59 or
any of sections 94 to 96.
|
|
PART 4
SENTENCING
|
|
Purpose and Principles
|
|
Purpose
|
38. (1)
The purpose of sentencing under section
42 (youth sentences) is to hold a young
person accountable for an offence through
the imposition of just sanctions that have
meaningful consequences for the young person
and that promote his or her rehabilitation
and reintegration into society, thereby
contributing to the long-term protection
of the public.
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|
Sentencing principles
|
(2) A youth justice
court that imposes a youth sentence on a
young person shall determine the sentence
in accordance with the principles set out
in section 3 and the following principles:
(a) the sentence
must not result in a punishment that is
greater than the punishment that would be
appropriate for an adult who has been convicted
of the same offence committed in similar
circumstances;
(b) the sentence
must be similar to the sentences imposed
in the region on similar young persons found
guilty of the same offence committed in
similar circumstances;
(c) the sentence
must be proportionate to the seriousness
of the offence and the degree of responsibility
of the young person for that offence;
(d) all available
sanctions other than custody that are reasonable
in the circumstances should be considered
for all young persons, with particular attention
to the circumstances of aboriginal young
persons; and
(e) subject
to paragraph (c), the sentence must
(i) be the least
restrictive sentence that is capable of
achieving the purpose set out in subsection
(1),
(ii) be the one
that is most likely to rehabilitate the
young person and reintegrate him or her
into society, and
(iii) promote a
sense of responsibility in the young person,
and an acknowledgement of the harm done
to victims and the community.
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|
Factors to be considered
|
(3) In determining
a youth sentence, the youth justice court
shall take into account
(a) the degree
of participation by the young person in
the commission of the offence;
(b) the harm
done to victims and whether it was intentional
or reasonably foreseeable;
(c) any reparation
made by the young person to the victim or
the community;
(d) the time
spent in detention by the young person as
a result of the offence;
(e) the previous
findings of guilt of the young person; and
(f) 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.
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|
Committal 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 findings
of guilt 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.
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|
Alternatives to
custody
|
(2) If any of paragraphs
(1)(a) to (c) apply, a youth
justice court shall not impose a custodial
sentence under section 42 (youth sentences)
unless the court has considered all alternatives
to custody raised at the sentencing hearing
that are reasonable in the circumstances,
and determined that there is not a reasonable
alternative, or combination of alternatives,
that is in accordance with the purpose and
principles set out in section 38.
|
|
Factors to be considered
|
(3) In determining
whether there is a reasonable alternative
to custody, a youth justice court shall
consider submissions relating to
(a) the alternatives
to custody that are available;
(b) the likelihood
that the young person will comply with a
non-custodial sentence, taking into account
his or her compliance with previous non-custodial
sentences; and
(c) the alternatives
to custody that have been used in respect
of young persons for similar offences committed
in similar circumstances.
|
|
Imposition of same
sentence
|
(4) The previous imposition
of a particular non-custodial sentence on
a young person does not preclude a youth
justice court from imposing the same or
any other non-custodial sentence for another
offence.
|
|
Custody as social
measure prohibited
|
(5) A youth justice
court shall not use custody as a substitute
for appropriate child protection, mental
health or other social measures.
|
|
Pre-sentence report
|
(6) Before imposing
a custodial sentence under section 42 (youth
sentences), a youth justice court shall
consider a pre-sentence report and any sentencing
proposal made by the young person or his
or her counsel.
|
|
Report dispensed
with
|
(7) A youth justice
court may, with the consent of the prosecutor
and the young person or his or her counsel,
dispense with a pre-sentence report if the
court is satisfied that the report is not
necessary.
|
|
Length of custody
|
(8) In determining
the length of a youth sentence that includes
a custodial portion, a youth justice court
shall be guided by the purpose and principles
set out in section 38, and shall not take
into consideration the fact that the supervision
portion of the sentence may not be served
in custody and that the sentence may be
reviewed by the court under section 94.
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|
Reasons
|
(9) If a youth justice
court imposes a youth sentence that includes
a custodial portion, the court shall state
the reasons why it has determined that a
non-custodial sentence is not adequate to
achieve the purpose set out in subsection
38(1), including, if applicable, the reasons
why the case is an exceptional case under
paragraph (1)(d).
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|
Pre-sentence Report
|
|
Pre-sentence report
|
40. (1)
Before imposing sentence on a young person
found guilty of an offence, a youth justice
court
(a) shall, if
it is required under this Act to consider
a pre-sentence report before making an order
or a sentence in respect of a young person,
and
(b) may, if
it considers it advisable,
require the provincial
director to cause to be prepared a pre-sentence
report in respect of the young person and
to submit the report to the court.
|
|
Contents of report
|
(2) A pre-sentence
report made in respect of a young person
shall, subject to subsection (3), be in
writing and shall include the following,
to the extent that it is relevant to the
purpose and principles of sentencing set
out in section 38 and to the restrictions
on custody set out in section 39:
(a) the results
of an interview with the young person and,
if reasonably possible, the parents of the
young person and, if appropriate and reasonably
possible, members of the young person's
extended family;
(b) the results
of an interview with the victim in the case,
if applicable and reasonably possible;
(c) the recommendations
resulting from any conference referred to
in section 41;
(d) any information
that is applicable to the case, including
(i) the age, maturity,
character, behaviour and attitude of the
young person and his or her willingness
to make amends,
(ii) any plans put
forward by the young person to change his
or her conduct or to participate in activities
or undertake measures to improve himself
or herself,
(iii) subject to
subsection 119(2) (period of access to records),
the history of previous findings of delinquency
under the Juvenile Delinquents Act,
chapter J-3 of the Revised Statutes of Canada,
1970, or previous findings of guilt for
offences under the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, or under this or any other Act of
Parliament or any regulation made under
it, the history of community or other services
rendered to the young person with respect
to those findings and the response of the
young person to previous sentences or dispositions
and to services rendered to him or her,
(iv) subject to
subsection 119(2) (period of access to records),
the history of alternative measures under
the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
or extrajudicial sanctions used to deal
with the young person and the response of
the young person to those measures or sanctions,
(v) the availability
and appropriateness of community services
and facilities for young persons and the
willingness of the young person to avail
himself or herself of those services or
facilities,
(vi) the relationship
between the young person and the young person's
parents and the degree of control and influence
of the parents over the young person and,
if appropriate and reasonably possible,
the relationship between the young person
and the young person's extended family and
the degree of control and influence of the
young person's extended family over the
young person, and
(vii) the school
attendance and performance record and the
employment record of the young person;
(e) any information
that may assist the court in determining
under subsection 39(2) whether there is
an alternative to custody; and
(f) any information
that the provincial director considers relevant,
including any recommendation that the provincial
director considers appropriate.
|
|
Oral report with
leave
|
(3) If a pre-sentence
report cannot reasonably be committed to
writing, it may, with leave of the youth
justice court, be submitted orally in court.
|
|
Report forms part
of record
|
(4) A pre-sentence
report shall form part of the record of
the case in respect of which it was requested.
|
|
Copies of pre-sentence
report
|
(5) If a pre-sentence
report made in respect of a young person
is submitted to a youth justice court in
writing, the court
(a) shall, subject
to subsection (7), cause a copy of the report
to be given to
(i) the young person,
(ii) any parent
of the young person who is in attendance
at the proceedings against the young person,
(iii) any counsel
representing the young person, and
(iv) the prosecutor;
and
(b) may cause
a copy of the report to be given to a parent
of the young person who is not in attendance
at the proceedings if the parent is, in
the opinion of the court, taking an active
interest in the proceedings.
|
|
Cross-examination
|
(6) If a pre-sentence
report made in respect of a young person
is submitted to a youth justice court, the
young person, his or her counsel or the
adult assisting the young person under subsection
25(7) and the prosecutor shall, subject
to subsection (7), on application to the
court, be given the opportunity to cross-examine
the person who made the report.
|
|
Report may be withheld
from private prosecutor
|
(7) If a pre-sentence
report made in respect of a young person
is submitted to a youth justice court, the
court may, when the prosecutor is a private
prosecutor and disclosure of all or part
of the report to the prosecutor might, in
the opinion of the court, be prejudicial
to the young person and is not, in the opinion
of the court, necessary for the prosecution
of the case against the young person,
(a) withhold
the report or part from the prosecutor,
if the report is submitted in writing; or
(b) exclude
the prosecutor from the court during the
submission of the report or part, if the
report is submitted orally in court.
|
|
Report disclosed
to other persons
|
(8) If a pre-sentence
report made in respect of a young person
is submitted to a youth justice court, the
court
(a) shall, on
request, cause a copy or a transcript of
the report to be supplied to
(i) any court that
is dealing with matters relating to the
young person, and
(ii) any youth worker
to whom the young person's case has been
assigned; and
(b) may, on
request, cause a copy or a transcript of
all or part of the report to be supplied
to any person not otherwise authorized under
this section to receive a copy or a transcript
of the report if, in the opinion of the
court, the person has a valid interest in
the proceedings.
|
|
Disclosure by the
provincial director
|
(9) A provincial director
who submits a pre-sentence report made in
respect of a young person to a youth justice
court may make all or part of the report
available to any person in whose custody
or under whose supervision the young person
is placed or to any other person who is
directly assisting in the care or treatment
of the young person.
|
|
Inadmissibility
of statements
|
(10) No statement made
by a young person in the course of the preparation
of a pre-sentence report in respect of the
young person is admissible in evidence against
any young person in civil or criminal proceedings
except those under section 42 (youth sentences),
59 (review of non-custodial sentence) or
71 (hearing -- adult sentences) or any of
sections 94 to 96 (reviews and other proceedings
related to custodial sentences).
|
|
Youth Sentences
|
|
Recommendation
of conference
|
41. When
a youth justice court finds a young person
guilty of an offence, the court may convene
or cause to be convened a conference under
section 19 for recommendations to the court
on an appropriate youth sentence.
|
|
Considerations
as to youth sentence
|
42. (1)
A youth justice court shall, before imposing
a youth sentence, consider any recommendations
submitted under section 41, any pre-sentence
report, any representations made by the
parties to the proceedings or their counsel
or agents and by the parents of the young
person, and any other relevant information
before the court.
|
|
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 that the court considers
appropriate 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 subparagraph (a)(ii),
(iii) or (iv) of the definition "presumptive
offence" in subsection 2(1), 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 any other reasonable and
ancillary conditions that the court considers
advisable and in the best interests of the
young person and the public.
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|
Agreement of provincial
director
|
(3) A youth justice
court may make an order under paragraph
(2)(l) or (m) only if the
provincial director has determined that
a program to enforce the order is available.
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|
Youth justice court
statement
|
(4) When the youth
justice court makes a custody and supervision
order with respect to a young person under
paragraph (2)(n), the court shall
state the following with respect to that
order:
You are ordered to
serve (
state the number of days or months
to be served
) in custody, to be followed
by (
state one-half of the number of days
or months stated above
) to be served
under supervision in the community subject
to conditions.
If you breach any of
the conditions while you are under supervision
in the community, you may be brought back
into custody and required to serve the rest
of the second period in custody as well.
You should also be
aware that, under other provisions of the
Youth Criminal Justice Act, a court
could require you to serve the second period
in custody as well.
The periods in custody
and under supervision in the community may
be changed if you are or become subject
to another sentence.
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|
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 that
is not a serious violent offence; 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.
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|
Application of sections
106 to 109
|
(6) Sections 106 to
109 (suspension of conditional supervision)
apply to a breach of a deferred custody
and supervision order made under paragraph
(2)(p) as if the breach were a breach
of an order for conditional supervision
made under subsection 105(1) and, for the
purposes of sections 106 to 109, supervision
under a deferred custody and supervision
order is deemed to be conditional supervision.
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|
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 an offence under
one of the following provisions of the
Criminal Code, namely, section 231
or 235 (first degree murder or second degree
murder within the meaning of section 231),
section 239 (attempt to commit murder),
section 232, 234 or 236 (manslaughter) or
section 273 (aggravated sexual assault),
or
(ii) the young person
has been found guilty of a serious violent
offence 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 a serious
violent 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.
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|
Safeguard of rights
|
(8) Nothing in this
section abrogates or derogates from the
rights of a young person regarding consent
to physical or mental health treatment or
care.
|
|
Determination by
court
|
(9) On application
of the Attorney General after a young person
is found guilty of an offence, and after
giving both parties an opportunity to be
heard, the youth justice court may make
a judicial determination that the offence
is a serious violent offence and endorse
the information or indictment accordingly.
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|
Appeals
|
(10) For the purposes
of an appeal in accordance with section
37, a determination under subsection (9)
is part of the sentence.
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|
Inconsistency
|
(11) An order may not
be made under paragraphs (2)(k) to
(m) in respect of an offence for
which a conditional discharge has been granted
under paragraph (2)(c).
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|
Coming into force
of youth sentence
|
(12) A youth sentence
or any part of it comes into force on the
date on which it is imposed or on any later
date that the youth justice court specifies.
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|
Consecutive youth
sentences
|
(13) Subject to subsections
(15) and (16), a youth justice court that
sentences a young person may direct that
a sentence imposed on the young person under
paragraph (2)(n), (o), (q)
or (r) be served consecutively if
the young person
(a) is sentenced
while under sentence for an offence under
any of those paragraphs; or
(b) is found
guilty of more than one offence under any
of those paragraphs.
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|
Duration of youth
sentence for a single offence
|
(14) No youth sentence,
other than an order made under paragraph
(2)(j), (n), (o), (q)
or (r), shall continue in force for
more than two years. If the youth sentence
comprises more than one sanction imposed
at the same time in respect of the same
offence, the combined duration of the sanctions
shall not exceed two years, unless the sentence
includes a sanction under paragraph (2)(j),
(n), (o), (q) or (r)
that exceeds two years.
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|
Duration of youth
sentence for different offences
|
(15) Subject to subsection
(16), if more than one youth sentence is
imposed under this section in respect of
a young person with respect to different
offences, the continuous combined duration
of those youth sentences shall not exceed
three years, except if one of the offences
is first degree murder or second degree
murder within the meaning of section 231
of the Criminal Code, in which case
the continuous combined duration of those
youth sentences shall not exceed ten years
in the case of first degree murder, or seven
years in the case of second degree murder.
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|
Duration of youth
sentences made at different times
|
(16) If a youth sentence
is imposed in respect of an offence committed
by a young person after the commencement
of, but before the completion of, any youth
sentences imposed on the young person,
(a) the duration
of the sentence imposed in respect of the
subsequent offence shall be determined in
accordance with subsections (14) and (15);
(b) the sentence
may be served consecutively to the sentences
imposed in respect of the previous offences;
and
(c) the combined
duration of all the sentences may exceed
three years and, if the offence is, or one
of the previous offences was,
(i) first degree
murder within the meaning of section 231
of the Criminal Code, the continuous
combined duration of the youth sentences
may exceed ten years, or
(ii) second degree
murder within the meaning of section 231
of the Criminal Code, the continuous
combined duration of the youth sentences
may exceed seven years.
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|
Sentence continues
when adult
|
(17) Subject to sections
89, 92 and 93 (provisions related to placement
in adult facilities) of this Act and section
743.5 (transfer of jurisdiction) of the
Criminal Code, a youth sentence imposed
on a young person continues in effect in
accordance with its terms after the young
person becomes an adult.
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|
Additional youth
sentences
|
43. Subject
to subsection 42(15) (duration of youth
sentences), if a young person who is subject
to a custodial sentence imposed under paragraph
42(2)(n), (o), (q)
or (r) that has not expired receives
an additional youth sentence under one of
those paragraphs, the young person is, for
the purposes of the
Corrections and Conditional
Release Act
, the Criminal Code,
the Prisons and Reformatories Act
and this Act, deemed to have been sentenced
to one youth sentence commencing at the
beginning of the first of those youth sentences
to be served and ending on the expiry of
the last of them to be served.
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|
Custodial portion
if additional youth sentence
|
44. Subject
to subsection 42(15) (duration of youth
sentences) and section 46 (exception when
youth sentence in respect of earlier offence),
if an additional youth sentence under paragraph
42(2)(n), (o), (q)
or (r) is imposed on a young person
on whom a youth sentence had already been
imposed under one of those paragraphs that
has not expired and the expiry date of the
youth sentence that includes the additional
youth sentence, as determined in accordance
with section 43, is later than the expiry
date of the youth sentence that the young
person was serving before the additional
youth sentence was imposed, the custodial
portion of the young person's youth sentence
is, from the date the additional sentence
is imposed, the total of
(a) the unexpired
portion of the custodial portion of the
youth sentence before the additional youth
sentence was imposed, and
(b) the relevant
period set out in subparagraph (i), (ii)
or (iii):
(i) if the additional
youth sentence is imposed under paragraph
42(2)(n), the period that is two
thirds of the period that constitutes the
difference between the expiry of the youth
sentence as determined in accordance with
section 43 and the expiry of the youth sentence
that the young person was serving before
the additional youth sentence was imposed,
(ii) if the additional
youth sentence is a concurrent youth sentence
imposed under paragraph 42(2)(o),
(q) or (r), the custodial
portion of the youth sentence imposed under
that paragraph that extends beyond the expiry
date of the custodial portion of the sentence
being served before the imposition of the
additional sentence, or
(iii) if the additional
youth sentence is a consecutive youth sentence
imposed under paragraph 42(2)(o),
(q) or (r), the custodial
portion of the additional youth sentence
imposed under that paragraph.
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|
Supervision when
additional youth sentence extends the period
in custody
|
45. (1)
If a young person has begun to serve a portion
of a youth sentence in the community subject
to conditions under paragraph 42(2)(n)
or under conditional supervision under paragraph
42(2)(o), (q) or (r)
at the time an additional youth sentence
is imposed under one of those paragraphs,
and, as a result of the application of section
44, the custodial portion of the young person's
youth sentence ends on a day that is later
than the day on which the young person received
the additional youth sentence, the serving
of a portion of the youth sentence under
supervision in the community subject to
conditions or under conditional supervision
shall become inoperative and the young person
shall be committed to custody under paragraph
102(1)(b) or 106(b) until
the end of the extended portion of the youth
sentence to be served in custody.
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|
Supervision when
additional youth sentence does not extend
the period in custody
|
(2) If a youth sentence
has been imposed under paragraph 42(2)(n),
(o), (q) or (r) on
a young person who is under supervision
in the community subject to conditions under
paragraph 42(2)(n) or under conditional
supervision under paragraph 42(2)(o),
(q) or (r), and the additional
youth sentence would not modify the expiry
date of the youth sentence that the young
person was serving at the time the additional
youth sentence was imposed, the young person
may be remanded to the youth custody facility
that the provincial director considers appropriate.
The provincial director shall review the
case and, no later than forty-eight hours
after the remand of the young person, shall
either refer the case to the youth justice
court for a review under section 103 or
109 or release the young person to continue
the supervision in the community or the
conditional supervision.
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|
Supervision when
youth sentence additional to supervision
|
(3) If a youth sentence
has been imposed under paragraph 42(2)(n),
(o), (q) or (r) on
a young person who is under conditional
supervision under paragraph 94(19)(b)
or subsection 96(5), the young person shall
be remanded to the youth custody facility
that the provincial director considers appropriate.
The provincial director shall review the
case and, no later than forty-eight hours
after the remand of the young person, shall
either refer the case to the youth justice
court for a review under section 103 or
109 or release the young person to continue
the conditional supervision.
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|
Exception when
youth sentence in respect of earlier offence
|
46. The
total of the custodial portions of a young
person's youth sentences shall not exceed
six years calculated from the beginning
of the youth sentence that is determined
in accordance with section 43 if
(a) a youth
sentence is imposed under paragraph 42(2)(n),
(o), (q) or (r) on
the young person already serving a youth
sentence under one of those paragraphs;
and
(b) the later
youth sentence imposed is in respect of
an offence committed before the commencement
of the earlier youth sentence.
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|
Committal to custody
deemed continuous
|
47. (1)
Subject to subsections (2) and (3), a young
person who is sentenced under paragraph
42(2)(n) is deemed to be committed
to continuous custody for the custodial
portion of the sentence.
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|
Intermittent custody
|
(2) If the sentence
does not exceed ninety days, the youth justice
court may order that the custodial portion
of the sentence be served intermittently
if it is consistent with the purpose and
principles set out in section 38.
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|
Availability of
place of intermittent custody
|
(3) Before making an
order of committal to intermittent custody,
the youth justice court shall require the
prosecutor to make available to the court
for its consideration a report of the provincial
director as to the availability of a youth
custody facility in which an order of intermittent
custody can be enforced and, if the report
discloses that no such youth custody facility
is available, the court shall not make the
order.
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|
Reasons for the
sentence
|
48. When
a youth justice court imposes a youth sentence,
it shall state its reasons for the sentence
in the record of the case and shall, on
request, give or cause to be given a copy
of the sentence and the reasons for the
sentence to
(a) the young
person, the young person's counsel, a parent
of the young person, the provincial director
and the prosecutor; and
(b) in the case
of a committal to custody under paragraph
42(2)(n), (o), (q)
or (r), the review board.
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|
Warrant of committal
|
49. (1)
When a young person is committed to custody,
the youth justice court shall issue or cause
to be issued a warrant of committal.
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|
Custody during transfer
|
(2) A young person
who is committed to custody may, in the
course of being transferred from custody
to the court or from the court to custody,
be held under the supervision and control
of a peace officer or in any place of temporary
detention referred to in subsection 30(1)
that the provincial director may specify.
|
|
Subsection 30(3)
applies
|
(3) Subsection 30(3)
(detention separate from adults) applies,
with any modifications that the circumstances
require, in respect of a person held in
a place of temporary detention under subsection
(2).
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|
Application of
Part XXIII of Criminal Code
|
50. (1)
Subject to section 74 (application of Criminal Code to adult sentences), Part
XXIII (sentencing) of the Criminal Code
does not apply in respect of proceedings
under this Act except for paragraph 718.2(e)
(sentencing principle for aboriginal offenders),
sections 722 (victim impact statements),
722.1 (copy of statement) and 722.2 (inquiry
by court), subsection 730(2) (court process
continues in force) and sections 748 (pardons
and remissions), 748.1 (remission by the
Governor in Council) and 749 (royal prerogative)
of that Act, which provisions apply with
any modifications that the circumstances
require.
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|
Section 787 of
Criminal Code does not apply
|
(2) Section 787 (general
penalty) of the Criminal Code does
not apply in respect of proceedings under
this Act.
|
|
Mandatory prohibition
order
|
51. (1)
Despite section 42 (youth sentences), when
a young person is found guilty of an offence
referred to in any of paragraphs 109(1)(a)
to (d) of the Criminal Code,
the youth justice court shall, in addition
to imposing a sentence under section 42
(youth sentences), make an order prohibiting
the young person from possessing any firearm,
cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited
ammunition or explosive substance during
the period specified in the order as determined
in accordance with subsection (2).
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|
Duration of prohibition
order
|
(2) An order made under
subsection (1) begins on the day on which
the order is made and ends not earlier than
two years after the young person has completed
the custodial portion of the sentence or,
if the young person is not subject to custody,
after the time the young person is found
guilty of the offence.
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|
Discretionary prohibition
order
|
(3) Despite section
42 (youth sentences), where a young person
is found guilty of an offence referred to
in paragraph 110(1)(a) or (b)
of the Criminal Code, the youth justice
court shall, in addition to imposing a sentence
under section 42 (youth sentences), consider
whether it is desirable, in the interests
of the safety of the young person or of
any other person, to make an order prohibiting
the young person from possessing any firearm,
cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited
ammunition or explosive substance, or all
such things, and where the court decides
that it is so desirable, the court shall
so order.
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|
Duration of prohibition
order
|
(4) An order made under
subsection (3) against a young person begins
on the day on which the order is made and
ends not later than two years after the
young person has completed the custodial
portion of the sentence or, if the young
person is not subject to custody, after
the time the young person is found guilty
of the offence.
|
|
Reasons for the
prohibition order
|
(5) When a youth justice
court makes an order under this section,
it shall state its reasons for making the
order in the record of the case and shall
give or cause to be given a copy of the
order and, on request, a transcript or copy
of the reasons to the young person against
whom the order was made, the counsel and
a parent of the young person and the provincial
director.
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|
Reasons
|
(6) When the youth
justice court does not make an order under
subsection (3), or when the youth justice
court does make such an order but does not
prohibit the possession of everything referred
to in that subsection, the youth justice
court shall include in the record a statement
of the youth justice court's reasons.
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|
Application of
Criminal Code
|
(7) Sections 113 to
117 (firearm prohibition orders) of the
Criminal Code apply in respect of
any order made under this section.
|
|
Report
|
(8) Before making an
order referred to in section 113 (lifting
firearms order) of the Criminal Code
in respect of a young person, the youth
justice court may require the provincial
director to cause to be prepared, and to
submit to the youth justice court, a report
on the young person.
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|
Review of order
made under section 51
|
52. (1)
A youth justice court may, on application,
review an order made under section 51 at
any time after the end of the period set
out in subsection 119(2) (period of access
to records) that applies to the record of
the offence that resulted in the order being
made.
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|
Grounds
|
(2) In conducting a
review under this section, the youth justice
court shall take into account
(a) the nature
and circumstances of the offence in respect
of which the order was made; and
(b) the safety
of the young person and of other persons.
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|
Decision of review
|
(3) When a youth justice
court conducts a review under this section,
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 order;
(b) revoke the
order; or
(c) vary the
order as it considers appropriate in the
circumstances of the case.
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|
New order not to
be More overous
|
(4) No variation of
an order made under paragraph (3)(c)
may be More overous than the order being
reviewed.
|
|
Application of provisions
|
(5) Subsections 59(3)
to (5) apply, with any modifications that
the circumstances require, in respect of
a review under this section.
|
|
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.
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|
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.
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|
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.
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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.
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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.
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Representations
respecting orders under paragraphs 42(2)(e)
to (h)
|
(4) In considering
whether to make an order under any of paragraphs
42(2)(e) to (h), the youth
justice court may consider any representations
made by the person who would be compensated
or to whom restitution or payment would
be made.
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Notice of orders
under paragraphs 42(2)(e) to (h)
|
(5) If the youth justice
court makes an order under any of paragraphs
42(2)(e) to (h), it shall
cause notice of the terms of the order to
be given to the person who is to be compensated
or to whom restitution or payment is to
be made.
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Consent of person
to be compensated
|
(6) No order may be
made under paragraph 42(2)(h) unless
the youth justice court has secured the
consent of the person to be compensated.
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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.
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|
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.
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|
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.
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|
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).
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Conditions that
must appear in orders
|
55. (1)
The youth justice court shall prescribe,
as conditions of an order made under paragraph
42(2)(k) or (l), that the
young person
(a) keep the
peace and be of good behaviour; and
(b) appear before
the youth justice court when required by
the court to do so.
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|
Conditions that
may appear in orders
|
(2) A youth justice
court may prescribe, as conditions of an
order made under paragraph 42(2)(k)
or (l), that a young person do one
or Read More .. the following that the youth
justice court considers appropriate in the
circumstances:
(a) report to
and be supervised by the provincial director
or a person designated by the youth justice
court;
(b) notify the
clerk of the youth justice court, the provincial
director or the youth worker assigned to
the case of any change of address or any
change in the young person's place of employment,
education or training;
(c) remain within
the territorial jurisdiction of one or more
courts named in the order;
(d) make reasonable
efforts to obtain and maintain suitable
employment;
(e) attend school
or any other place of learning, training
or recreation that is appropriate, if the
youth justice court is satisfied that a
suitable program for the young person is
available there;
(f) reside with
a parent, or any other adult that the youth
justice court considers appropriate, who
is willing to provide for the care and maintenance
of the young person;
(g) reside at
a place that the provincial director may
specify;
(h) comply with
any other conditions set out in the order
that the youth justice court considers appropriate,
including conditions for securing the young
person's good conduct and for preventing
the young person from repeating the offence
or committing other offences; and
(i) not own,
possess or have the control of any weapon,
ammunition, prohibited ammunition, prohibited
device or explosive substance, except as
authorized by the order.
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|
Communication of
order
|
56. (1)
A youth justice court that makes an order
under paragraph 42(2)(k) or (l)
shall
(a) cause the
order to be read by or to the young person
bound by it;
(b) explain
or cause to be explained to the young person
the purpose and effect of the order, and
confirm that the young person understands
it; and
(c) cause a
copy of the order to be given to the young
person, and to any parent of the young person
who is in attendance at the sentencing hearing.
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Copy of order to
parent
|
(2) A youth justice
court that makes an order under paragraph
42(2)(k) or (l) may cause
a copy to be given to a parent of the young
person who is not in attendance at the proceedings
if the parent is, in the opinion of the
court, taking an active interest in the
proceedings.
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|
Endorsement of order
by young person
|
(3) After the order
has been read and explained under subsection
(1), the young person shall endorse on the
order an acknowledgement that the young
person has received a copy of the order
and had its purpose and effect explained.
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|
Validity of order
|
(4) The failure of
a young person to endorse the order or of
a parent to receive a copy of the order
does not affect the validity of the order.
|
|
Commencement of
order
|
(5) An order made under
paragraph 42(2)(k) or (l)
comes into force
(a) on the date
on which it is made; or
(b) if a young
person receives a sentence that includes
a period of continuous custody and supervision,
at the end of the period of supervision.
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|
Effect of order
in case of custody
|
(6) If a young person
is subject to a sentence that includes both
a period of continuous custody and supervision
and an order made under paragraph 42(2)(k)
or (l), and the court orders under
subsection 42(12) a delay in the start of
the period of custody, the court may divide
the period that the order made under paragraph
42(2)(k) or (l) is in effect,
with the first portion to have effect from
the date on which it is made until the start
of the period of custody, and the remainder
to take effect at the end of the period
of supervision.
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|
Notice to appear
|
(7) A young person
may be given notice either orally or in
writing to appear before the youth justice
court under paragraph 55(1)(b).
|
|
Warrant in default
of appearance
|
(8) If service of a
notice in writing is proved and the young
person fails to attend court in accordance
with the notice, a youth justice court may
issue a warrant to compel the appearance
of the young person.
|
|
Transfer of youth
sentence
|
57. (1)
When a youth sentence has been imposed under
any of paragraphs 42(2)(d) to (i),
(k), (l) or (s) in
respect of a young person and the young
person or a parent with whom the young person
resides is or becomes a resident of a territorial
division outside the jurisdiction of the
youth justice court that imposed the youth
sentence, whether in the same or in another
province, a youth justice court judge in
the territorial division in which the youth
sentence was imposed may, on the application
of the Attorney General or on the application
of the young person or the young person's
parent, with the consent of the Attorney
General, transfer to a youth justice court
in another territorial division the youth
sentence and any portion of the record of
the case that is appropriate. All subsequent
proceedings relating to the case shall then
be carried out and enforced by that court.
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No transfer outside
province before appeal completed
|
(2) No youth sentence
may be transferred from one province to
another under this section until the time
for an appeal against the youth sentence
or the finding on which the youth sentence
was based has expired or until all proceedings
in respect of any such appeal have been
completed.
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|
Transfer to a province
when person is adult
|
(3) When an application
is made under subsection (1) to transfer
the youth sentence of a young person to
a province in which the young person is
an adult, a youth justice court judge may,
with the consent of the Attorney General,
transfer the youth sentence and the record
of the case to the youth justice court in
the province to which the transfer is sought,
and the youth justice court to which the
case is transferred shall have full jurisdiction
in respect of the youth sentence as if that
court had imposed the youth sentence. The
person shall be further dealt with in accordance
with this Act.
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|
Interprovincial
arrangements
|
58. (1)
When a youth sentence has been imposed under
any of paragraphs 42(2)(k) to (r)
in respect of a young person, the youth
sentence in one province may be dealt with
in any other province in accordance with
any agreement that may have been made between
those provinces.
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|
Youth justice court
retains jurisdiction
|
(2) Subject to subsection
(3), when a youth sentence imposed in respect
of a young person is dealt with under this
section in a province other than that in
which the youth sentence was imposed, the
youth justice court of the province in which
the youth sentence was imposed retains,
for all purposes of this Act, exclusive
jurisdiction over the young person as if
the youth sentence were dealt with within
that province, and any warrant or process
issued in respect of the young person may
be executed or served in any place in Canada
outside the province where the youth sentence
was imposed as if it were executed or served
in that province.
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|
Waiver of jurisdiction
|
(3) When a youth sentence
imposed in respect of a young person is
dealt with under this section in a province
other than the one in which the youth sentence
was imposed, the youth justice court of
the province in which the youth sentence
was imposed may, with the consent in writing
of the Attorney General of that province
and the young person, waive its jurisdiction,
for the purpose of any proceeding under
this Act, to the youth justice court of
the province in which the youth sentence
is dealt with, in which case the youth justice
court in the province in which the youth
sentence is dealt with shall have full jurisdiction
in respect of the youth sentence as if that
court had imposed the youth sentence.
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|
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).
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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.
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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.
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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).
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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.
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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.
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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.
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New youth sentence
not to be More overous
|
(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 overous than
the remainder of the youth sentence reviewed.
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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 Read More ..me 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.
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Provisions applicable
to youth sentences on review
|
60. This
Part and Part 5 (custody and supervision)
apply with any modifications that the circumstances
require to orders made in respect of reviews
of youth sentences under sections 59 and
94 to 96.
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|
Adult Sentence
and Election
|
|
Age for purpose
of presumptive offences
|
61. The
lieutenant governor in council of a province
may by order fix an age greater than fourteen
years but not more than sixteen years for
the purpose of the application of the provisions
of this Act relating to presumptive offences.
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Imposition of adult
sentence
|
62. An
adult sentence shall be imposed on a young
person who is found guilty of an indictable
offence for which an adult is liable to
imprisonment for a term of more than two
years in the following cases:
(a) in the case
of a presumptive offence, if the youth justice
court makes an order under subsection 70(2)
or paragraph 72(1)(b); or
(b) in any other
case, if the youth justice court makes an
order under subsection 64(5) or paragraph
72(1)(b) in relation to an offence
committed after the young person attained
the age of fourteen years.
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Application by
young person
|
63. (1)
A young person who is charged with, or found
guilty of, a presumptive offence may, at
any time before evidence is called as to
sentence or, where no evidence is called,
before submissions are made as to sentence,
make an application for an order that he
or she is not liable to an adult sentence
and that a youth sentence must be imposed.
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Application unopposed
|
(2) If the Attorney
General gives notice to the youth justice
court that the Attorney General does not
oppose the application, the youth justice
court shall, without a hearing, order that
the young person, if found guilty, is not
liable to an adult sentence and that a youth
sentence must be imposed.
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Application by
Attorney General
|
64. (1)
The Attorney General may, following an application
under subsection 42(9) (judicial determination
of serious violent offence), if any is made,
and before evidence is called as to sentence
or, where no evidence is called, before
submissions are made as to sentence, make
an application for an order that a young
person is liable to an adult sentence if
the young person is or has been found guilty
of an offence, other than a presumptive
offence, for which an adult is liable to
imprisonment for a term of more than two
years, that was committed after the young
person attained the age of fourteen years.
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|
Notice of intention
to seek adult sentence
|
(2) If the Attorney
General intends to seek an adult sentence
for an offence by making an application
under subsection (1), or by establishing
that the offence is a presumptive offence
within the meaning of paragraph (b)
of the definition "presumptive offence"
in subsection 2(1), the Attorney General
shall, before the young person enters a
plea or with leave of the youth justice
court before the commencement of the trial,
give notice to the young person and the
youth justice court of the intention to
seek an adult sentence.
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|
Included offences
|
(3) A notice of intention
to seek an adult sentence given in respect
of an offence is notice in respect of any
included offence of which the young person
is found guilty for which an adult is liable
to imprisonment for a term of more than
two years.
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|
Notice to young
person
|
(4) If a young person
is charged with an offence, other than an
offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1), and the Attorney General
intends to establish, after a finding of
guilt, that the offence is a serious violent
offence and a presumptive offence within
the meaning of paragraph (b) of the
definition "presumptive offence" in subsection
2(1) for which the young person is liable
to an adult sentence, the Attorney General
shall, before the young person enters a
plea or, with leave of the youth justice
court under subsection (2), before the commencement
of the trial, give notice of that intention
to the young person.
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Application unopposed
|
(5) If the young person
gives notice to the youth justice court
that the young person does not oppose the
application for an adult sentence, the youth
justice court shall, without a hearing,
order that if the young person is found
guilty of an offence for which an adult
is liable to imprisonment for a term of
more than two years, an adult sentence must
be imposed.
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Presumption does
not apply
|
65. If
the Attorney General at any stage of proceedings
gives notice to the youth justice court
that an adult sentence will not be sought
in respect of a young person who is alleged
to have committed an offence set out in
paragraph (a) of the definition "presumptive
offence" in subsection 2(1), the court shall
order that the young person is not liable
to an adult sentence, and the court shall
order a ban on publication of information
that would identify the young person as
having been dealt with under this Act.
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No election if
youth sentence
|
66. If
the youth justice court has made an order
under subsection 63(2) or section 65 before
a young person is required to be put to
an election under section 67, the young
person shall not be put to an election unless
the young person is alleged to have committed
first degree murder or second degree murder
within the meaning of section 231 of the
Criminal Code.
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|
Election -- adult
sentence
|
67. (1)
Subject to section 66, the youth justice
court shall, before a young person enters
a plea, put the young person to his or her
election in the words set out in subsection
(2) if
(a) the young
person is charged with having committed
an offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1);
(b) the Attorney
General has given notice under subsection
64(2) of the intention to seek an adult
sentence for an offence committed after
the young person has attained the age of
fourteen years;
(c) the young
person is charged with having committed
first or second degree murder within the
meaning of section 231 of the
Criminal
Code
before the young person has attained
the age of fourteen years; or
(d) the person
to whom section 16 (status of accused uncertain)
applies is charged with having, after attaining
the age of fourteen years, committed an
offence for which an adult would be entitled
to an election under section 536 of the
Criminal Code, or over which a superior
court of criminal jurisdiction would have
exclusive jurisdiction under section 469
of that Act.
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Wording of election
|
(2) The youth justice
court shall put the young person to his
or her election in the following words:
You have the option
to elect to be tried by a youth justice
court judge without a jury and without having
had a preliminary inquiry; or you may elect
to have a preliminary inquiry and to be
tried by a judge without a jury; or you
may elect to have a preliminary inquiry
and to be tried by a court composed of a
judge and jury. If you do not elect now,
you shall be deemed to have elected to have
a preliminary inquiry and to be tried by
a court composed of a judge and jury. How
do you elect to be tried?
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|
Election -- Nunavut
|
(3) Subject to section
66, in respect of proceedings in Nunavut,
the youth justice court shall, before a
young person enters a plea, put the young
person to his or her election in the words
set out in subsection (4) if
(a) the young
person is charged with having committed
an offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1);
(b) the Attorney
General has given notice under subsection
64(2) of the intention to seek an adult
sentence for an offence committed after
the young person has attained the age of
fourteen years;
(c) the young
person is charged with having committed
first or second degree murder within the
meaning of section 231 of the
Criminal
Code
before the young person has attained
the age of fourteen years; or
(d) the person
to whom section 16 (status of accused uncertain)
applies is charged with having, after attaining
the age of fourteen years, committed an
offence for which an adult would be entitled
to an election under section 536.1 of the
Criminal Code.
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|
Wording of election
|
(4) The youth justice
court shall put the young person to his
or her election in the following words:
You have the option
to elect to be tried by a judge of the Nunavut
Court of Justice alone, acting as a youth
justice court without a jury and without
a preliminary inquiry; or you may elect
to have a preliminary inquiry and to be
tried by a judge of the Nunavut Court of
Justice, acting as a youth justice court
without a jury; or you may elect to have
a preliminary inquiry and to be tried by
a judge of the Nunavut Court of Justice,
acting as a youth justice court with a jury.
If you do not elect now, you shall be deemed
to have elected to have a preliminary inquiry
and to be tried by a court composed of a
judge and jury. How do you elect to be tried?
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Mode of trial where
co-accused are young persons
|
(5) When two or more
young persons who are charged with the same
offence, who are jointly charged in the
same information or indictment or in respect
of whom the Attorney General seeks joinder
of counts that are set out in separate informations
or indictments are put to their election,
then, unless all of them elect or re-elect
or are deemed to have elected, as the case
may be, the same mode of trial, the youth
justice court judge
(a) may decline
to record any election, re-election or deemed
election for trial by a youth justice court
judge without a jury, a judge without a
jury or, in Nunavut, a judge of the Nunavut
Court Justice without a jury; and
(b) if the judge
declines to do so, shall hold a preliminary
inquiry unless a preliminary inquiry has
been held prior to the election, re-election
or deemed election.
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Attorney General
may require trial by jury
|
(6) The Attorney General
may, even if a young person elects under
subsection (1) or (3) to be tried by a youth
justice court judge without a jury or a
judge without a jury, require the young
person to be tried by a court composed of
a judge and jury.
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|
Preliminary inquiry
|
(7) When a young person
elects to be tried by a judge without a
jury, or elects or is deemed to have elected
to be tried by a court composed of a judge
and jury, the youth justice court referred
to in subsection 13(1) shall conduct a preliminary
inquiry and if, on its conclusion, the young
person is ordered to stand trial, the proceedings
shall be conducted
(a) before a
judge without a jury or a court composed
of a judge and jury, as the case may be;
or
(b) in Nunavut,
before a judge of the Nunavut Court of Justice
acting as a youth justice court, with or
without a jury, as the case may be.
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|
Preliminary inquiry
provisions of Criminal Code
|
(8) The preliminary
inquiry shall be conducted in accordance
with the provisions of Part XVIII (procedure
on preliminary inquiry) of the
Criminal
Code
, except to the extent that they
are inconsistent with this Act.
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|
Parts XIX and XX
of Criminal Code
|
(9) Proceedings under
this Act before a judge without a jury or
a court composed of a judge and jury or,
in Nunavut, a judge of the Nunavut Court
of Justice acting as a youth justice court,
with or without a jury, as the case may
be, shall be conducted in accordance with
the provisions of Parts XIX (indictable
offences -- trial without jury) and XX (procedure
in jury trials and general provisions) of
the Criminal Code, with any modifications
that the circumstances require, except that
(a) the provisions
of this Act respecting the protection of
privacy of young persons prevail over the
provisions of the Criminal Code;
and
(b) the young
person is entitled to be represented in
court by counsel if the young person is
removed from court in accordance with subsection
650(2) of the Criminal Code.
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|
Proof of notice
under subsection 64(4)
|
68. (1)
When a young person is found guilty of an
offence, other than an offence set out in
paragraph (a) of the definition "presumptive
offence" in subsection 2(1), committed after
he or she attained the age of fourteen years,
and the Attorney General seeks to establish
that the offence is a serious violent offence
and a presumptive offence within the meaning
of paragraph (b) of the definition
"presumptive offence" in subsection 2(1),
the Attorney General must satisfy the youth
justice court that the young person, before
entering a plea, was given notice under
subsection 64(4) (intention to prove prior
serious violent offences).
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Determination of
serious violent offence
|
(2) If the youth justice
court is satisfied that the young person
was given notice under subsection 64(4)
(intention to prove prior serious violent
offences), the Attorney General may make
an application in accordance with subsection
42(9) (judicial determination of serious
violent offence).
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|
Inquiry by court
and proof
|
(3) If the youth justice
court determines that the offence is a serious
violent offence, it shall ask whether the
young person admits to the previous judicial
determinations of serious violent offences
made at different proceedings. If the young
person does not admit to any of it, the
Attorney General may adduce evidence as
proof of the previous judicial determinations
in accordance with section 667 of the Criminal Code, with any modifications
that the circumstances require. For the
purposes of that section, a certified copy
of the information or indictment endorsed
in accordance with subsection 42(9) (judicial
determination of serious violent offence)
or a certified copy of a court decision
is deemed to be a certificate.
|
|
Determination by
court
|
(4) If the youth justice
court, after making its inquiry under subsection
(3), is satisfied that the offence is a
presumptive offence within the meaning of
paragraph (b) of the definition "presumptive
offence" in subsection 2(1), the youth justice
court shall endorse the information or indictment
accordingly.
|
|
Determination by
court
|
(5) If the youth justice
court, after making its inquiry under subsection
(3), is not satisfied that the offence is
a presumptive offence within the meaning
of paragraph (b) of the definition
"presumptive offence" in subsection 2(1),
the Attorney General may make an application
under subsection 64(1) (application for
adult sentence).
|
|
Paragraph (a)
"presumptive offence" -- included offences
|
69. (1)
If a young person who is charged with an
offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1) is found guilty of committing
an included offence for which an adult is
liable to imprisonment for a term of more
than two years, other than another presumptive
offence set out in that paragraph,
(a) the Attorney
General may make an application under subsection
64(1) (application for adult sentence) without
the necessity of giving notice under subsection
64(2), if the finding of guilt is for an
offence that is not a presumptive offence;
or
(b) subsections
68(2) to (5) apply without the necessity
of the Attorney General giving notice under
subsection 64(2) (intention to seek adult
sentence) or (4) (intention to prove prior
serious violent offences), if the finding
of guilt is for an offence that would be
a presumptive offence within the meaning
of paragraph (b) of the definition
"presumptive offence" in subsection 2(1)
if a judicial determination is made that
the offence is a serious violent offence
and on proof of previous judicial determinations
of a serious violent offence.
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|
Other serious offences
-- included offences
|
(2) If the Attorney
General has given notice under subsection
64(2) of the intention to seek an adult
sentence and the young person, after he
or she has attained the age of fourteen
years, is found guilty of committing an
included offence for which an adult is liable
to imprisonment for a term of more than
two years, the Attorney General may make
an application under subsection 64(1) (application
for adult sentence) or seek to apply the
provisions of section 68.
|
|
Inquiry by court
to young person
|
70. (1)
The youth justice court, after hearing an
application under subsection 42(9) (judicial
determination of serious violent offence),
if any is made, and before evidence is called
or, where no evidence is called, before
submissions are made as to sentence, shall
inquire whether a young person wishes to
make an application under subsection 63(1)
(application for youth sentence) and if
so, whether the Attorney General would oppose
it, if
(a) the young
person has been found guilty of a presumptive
offence;
(b) the young
person has not already made an application
under subsection 63(1); and
(c) no order
has been made under section 65 (young person
not liable to adult sentence).
|
|
No application by
young person
|
(2) If the young person
indicates that he or she does not wish to
make an application under subsection 63(1)
(application for youth sentence) or fails
to give an indication, the court shall order
that an adult sentence be imposed.
|
|
Hearing -- adult
sentences
|
71. The
youth justice court shall, at the commencement
of the sentencing hearing, hold a hearing
in respect of an application under subsection
63(1) (application for youth sentence) or
64(1) (application for adult sentence),
unless the court has received notice that
the application is not opposed. Both parties
and the parents of the young person shall
be given an opportunity to be heard at the
hearing.
|
|
Test -- adult sentences
|
72. (1)
In making its decision on an application
heard in accordance with section 71, the
youth justice court shall consider the seriousness
and circumstances of the offence, and the
age, maturity, character, background and
previous record of the young person and
any other factors that the court considers
relevant, and
(a) if it is
of the opinion that a youth sentence imposed
in accordance with the purpose and principles
set out in subparagraph 3(1)(b)(ii)
and section 38 would have sufficient length
to hold the young person accountable for
his or her offending behaviour, it shall
order that the young person is not liable
to an adult sentence and that a youth sentence
must be imposed; and
(b) if it is
of the opinion that a youth sentence imposed
in accordance with the purpose and principles
set out in subparagraph 3(1)(b)(ii)
and section 38 would not have sufficient
length to hold the young person accountable
for his or her offending behaviour, it shall
order that an adult sentence be imposed.
|
|
Onus
|
(2) The onus of satisfying
the youth justice court as to the matters
referred to in subsection (1) is with the
applicant.
|
|
Pre-sentence reports
|
(3) In making its decision,
the youth justice court shall consider a
pre-sentence report.
|
|
Court to state reasons
|
(4) When the youth
justice court makes an order under this
section, it shall state the reasons for
its decision.
|
|
Appeals
|
(5) For the purposes
of an appeal in accordance with section
37, an order under subsection (1) is part
of the sentence.
|
|
Court must impose
adult sentence
|
73. (1)
When the youth justice court makes an order
under subsection 64(5) or 70(2) or paragraph
72(1)(b) in respect of a young person,
the court shall, on a finding of guilt,
impose an adult sentence on the young person.
|
|
Court must impose
youth sentence
|
(2) When the youth
justice court makes an order under subsection
63(2), section 65 or paragraph 72(1)(a)
in respect of a young person, the court
shall, on a finding of guilt, impose a youth
sentence on the young person.
|
|
Application of
Parts XXIII and XXIV of Criminal Code
|
74. (1)
Parts XXIII (sentencing) and XXIV (dangerous
and long-term offenders) of the
Criminal
Code
apply to a young person in respect
of whom the youth justice court has ordered
that an adult sentence be imposed.
|
|
Finding of guilt
becomes a conviction
|
(2) A finding of guilt
for an offence in respect of which an adult
sentence is imposed becomes a conviction
once the time allowed for the taking of
an appeal has expired or, if an appeal is
taken, all proceedings in respect of the
appeal have been completed and the appeal
court has upheld an adult sentence.
|
|
Interpretation
|
(3) This section does
not affect the time of commencement of an
adult sentence under subsection 719(1) of
the Criminal Code.
|
|
Inquiry by the
court to the young person
|
75. (1)
If the youth justice court imposes a youth
sentence in respect of a young person who
has been found guilty of having committed
a presumptive offence set out in paragraph
(a) of the definition "presumptive
offence" in subsection 2(1), or an offence
under paragraph (b) of that definition
for which the Attorney General has given
notice under subsection 64(2) (intention
to seek adult sentence), the court shall
at the sentencing hearing inquire whether
the young person or the Attorney General
wishes to make an application under subsection
(3) for a ban on publication.
|
|
No application for
a ban
|
(2) If the young person
and the Attorney General both indicate that
they do not wish to make an application
under subsection (3), the court shall endorse
the information or indictment accordingly.
|
|
Order for a ban
|
(3) On application
of the young person or the Attorney General,
a youth justice court may order a ban on
publication of information that would identify
the young person as having been dealt with
under this Act if the court considers it
appropriate in the circumstances, taking
into account the importance of rehabilitating
the young person and the public interest.
|
|
Appeals
|
(4) For the purposes
of an appeal in accordance with section
37, an order under subsection (3) is part
of the sentence.
|
|
Placement when
subject to adult sentence
|
76. (1)
Subject to subsections (2) and (9) and sections
79 and 80 and despite anything else in this
Act or any other Act of Parliament, when
a young person who is subject to an adult
sentence in respect of an offence is sentenced
to a term of imprisonment for the offence,
the youth justice court shall order that
the young person serve any portion of the
imprisonment in
(a) a youth
custody facility separate and apart from
any adult who is detained or held in custody;
(b) a provincial
correctional facility for adults; or
(c) if the sentence
is for two years or Read More ..a penitentiary.
|
|
When young person
subject to adult penalties
|
(2) The youth justice
court that sentences a young person under
subsection (1) shall, unless it is satisfied
that to do so would not be in the best interests
of the young person or would jeopardize
the safety of others,
(a) if the young
person is under the age of eighteen years
at the time that he or she is sentenced,
order that he or she be placed in a youth
custody facility; and
(b) if the young
person is eighteen years old or older at
the time that he or she is sentenced, order
that he or she not be placed in a youth
custody facility and order that any portion
of the sentence be served in a provincial
correctional facility for adults or, if
the sentence is two years or Read More ..in a
penitentiary.
|
|
Opportunity to be
heard
|
(3) Before making an
order under subsection (1), the youth justice
court shall give the young person, a parent
of the young person, the Attorney General,
the provincial director and representatives
of the provincial and federal correctional
systems an opportunity to be heard.
|
|
Report necessary
|
(4) Before making an
order under subsection (1), the youth justice
court shall require that a report be prepared
for the purpose of assisting the court.
|
|
Appeals
|
(5) For the purposes
of an appeal in accordance with section
37, an order under subsection (1) is part
of the sentence.
|
|
Review
|
(6) On application,
the youth justice court shall review the
placement of a young person under this section
and, if satisfied that the circumstances
that resulted in the initial order have
changed materially, and after having given
the young person, a parent of the young
person, the Attorney General, the provincial
director and the representatives of the
provincial and federal correctional systems
an opportunity to be heard, the court may
order that the young person be placed in
(a) a youth
custody facility separate and apart from
any adult who is detained or held in custody;
(b) a provincial
correctional facility for adults; or
(c) if the sentence
is for two years or Read More ..a penitentiary.
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|
Who may make application
|
(7) An application
referred to in this section may be made
by the young person, one of the young person's
parents, the provincial director, representatives
of the provincial and federal correctional
systems and the Attorney General, after
the time for all appeals has expired.
|
|
Notice
|
(8) When an application
referred to in this section is made, the
applicant shall cause a notice of the application
to be given to the other persons referred
to in subsection (7).
|
|
Limit -- age twenty
|
(9) No young person
shall remain in a youth custody facility
under this section after the young person
attains the age of twenty years, unless
the youth justice court that makes the order
under subsection (1) or reviews the placement
under subsection (6) is satisfied that remaining
in the youth custody facility would be in
the best interests of the young person and
would not jeopardize the safety of others.
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|
Obligation to inform
-- parole
|
77. (1)
When a young person is ordered to serve
a portion of a sentence in a youth custody
facility under paragraph 76(1)(a)
(placement when subject to adult sentence),
the provincial director shall inform the
appropriate parole board.
|
|
Applicability of
Corrections and Conditional Release Act
|
(2) For greater certainty,
Part II of the
Corrections and Conditional
Release Act
applies, subject to section
78, with respect to a young person who is
the subject of an order under subsection
76(1) (placement when subject to adult sentence).
|
|
Appropriate parole
board
|
(3) The appropriate
parole board for the purposes of this section
is
(a) if subsection
112(1) of the
Corrections and Conditional
Release Act
would apply with respect
to the young person but for the fact that
the young person was ordered into a youth
custody facility, the parole board mentioned
in that subsection; and
(b) in any other
case, the National Parole Board.
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|
Release entitlement
|
78. (1)
For greater certainty, section 6 of the
Prisons and Reformatories Act applies
to a young person who is ordered to serve
a portion of a sentence in a youth custody
facility under paragraph 76(1)(a)
(placement when subject to adult sentence)
only if section 743.1 (rules respecting
sentences of two or Read More ..ars) of the
Criminal Code would direct that the
young person serve the sentence in a prison.
|
|
Release entitlement
|
(2) For greater certainty,
section 127 of the
Corrections and Conditional
Release Act
applies to a young person
who is ordered to serve a portion of a sentence
in a youth custody facility under paragraph
76(1)(a) (placement when subject
to adult sentence) only if section 743.1
(rules respecting sentences of two or more
years) of the Criminal Code would
direct that the young person serve the sentence
in a penitentiary.
|
|
If person convicted
under another Act
|
79. If
a person who is serving all or a portion
of a sentence in a youth custody facility
under paragraph 76(1)(a) (placement
when subject to adult sentence) is sentenced
to a term of imprisonment under an Act of
Parliament other than this Act, the remainder
of the portion of the sentence being served
in the youth custody facility shall be served
in a provincial correctional facility for
adults or a penitentiary, in accordance
with section 743.1 (rules respecting sentences
of two or Read More ..ars) of the
Criminal
Code
.
|
|
If person who is
serving a sentence under another Act is
sentenced to an adult sentence
|
80. If
a person who has been serving a sentence
of imprisonment under an Act of Parliament
other than this Act is sentenced to an adult
sentence of imprisonment under this Act,
the sentences shall be served in a provincial
correctional facility for adults or a penitentiary,
in accordance with section 743.1 (rules
respecting sentences of two or Read More ..ars)
of the Criminal Code.
|
|
Procedure for application
or notice
|
81. An
application or a notice to the court under
section 63, 64, 65 or 76 must be made or
given orally, in the presence of the other
party, or in writing with a copy served
personally on the other party.
|
|
Effect of Termination
of Youth Sentence
|
|
Effect of absolute
discharge or termination of youth sentence
|
82. (1)
Subject to section 12 (examination as to
previous convictions) of the
Canada Evidence
Act
, if a young person is found guilty
of an offence, and a youth justice court
directs under paragraph 42(2)(b)
that the young person be discharged absolutely,
or the youth sentence, or any disposition
made under the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, has ceased to have effect, other than
an order under section 51 (mandatory prohibition
order) of this Act or section 20.1 (mandatory
prohibition order) of the
Young Offenders
Act
, the young person is deemed not
to have been found guilty or convicted of
the offence except that
(a) the young
person may plead autrefois convict
in respect of any subsequent charge relating
to the offence;
(b) a youth
justice court may consider the finding of
guilt in considering an application under
subsection 63(1) (application for youth
sentence) or 64(1) (application for adult
sentence);
(c) any court
or justice may consider the finding of guilt
in considering an application for judicial
interim release or in considering what sentence
to impose for any offence; and
(d) the National
Parole Board or any provincial parole board
may consider the finding of guilt in considering
an application for conditional release or
pardon.
|
|
Disqualifications
removed
|
(2) For greater certainty
and without restricting the generality of
subsection (1), an absolute discharge under
paragraph 42(2)(b) or the termination
of the youth sentence or disposition in
respect of an offence for which a young
person is found guilty removes any disqualification
in respect of the offence to which the young
person is subject under any Act of Parliament
by reason of a finding of guilt.
|
|
Applications for
employment
|
(3) No application
form for or relating to the following shall
contain any question that by its terms requires
the applicant to disclose that he or she
has been charged with or found guilty of
an offence in respect of which he or she
has, under this Act or the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985, been discharged absolutely,
or has completed the youth sentence under
this Act or the disposition under the Young Offenders Act:
(a) employment
in any department, as defined in section
2 of the Financial Administration Act;
(b) employment
by any Crown corporation, as defined in
section 83 of the
Financial Administration
Act
;
(c) enrolment
in the Canadian Forces; or
(d) employment
on or in connection with the operation of
any work, undertaking or business that is
within the legislative authority of Parliament.
|
|
Finding of guilt
not a previous conviction
|
(4) A finding of guilt
under this Act is not a previous conviction
for the purposes of any offence under any
Act of Parliament for which a greater punishment
is prescribed by reason of previous convictions,
except for
(a) the purpose
of establishing that an offence is a presumptive
offence within the meaning of paragraph
(b) of the definition "presumptive
offence" in subsection 2(1); or
(b) the purpose
of determining the adult sentence to be
imposed.
|
|
PART 5
CUSTODY AND SUPERVISION
|
|
Purpose
|
83. (1)
The purpose of the youth custody and supervision
system is to contribute to the protection
of society by
(a) carrying
out sentences imposed by courts through
the safe, fair and humane custody and supervision
of young persons; and
(b) assisting
young persons to be rehabilitated and reintegrated
into the community as law-abiding citizens,
by providing effective programs to young
persons in custody and while under supervision
in the community.
|
|
Principles to be
used
|
(2) In addition to
the principles set out in section 3, the
following principles are to be used in achieving
that purpose:
(a) that the
least restrictive measures consistent with
the protection of the public, of personnel
working with young persons and of young
persons be used;
(b) that young
persons sentenced to custody retain the
rights of other young persons, except the
rights that are necessarily removed or restricted
as a consequence of a sentence under this
Act or another Act of Parliament;
(c) that the
youth custody and supervision system facilitate
the involvement of the families of young
persons and members of the public;
(d) that custody
and supervision decisions be made in a forthright,
fair and timely manner, and that young persons
have access to an effective review procedure;
and
(e) that placements
of young persons where they are treated
as adults not disadvantage them with respect
to their eligibility for and conditions
of release.
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|
Young person to
be held apart from adults
|
84. Subject
to subsection 30(3) (pre-trial detention),
paragraphs 76(1)(b) and (c)
(placement in adult facilities with adult
sentence) and sections 89 to 93 (placement
in adult facilities with youth sentence),
a young person who is committed to custody
shall be held separate and apart from any
adult who is detained or held in custody.
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|
Levels of custody
|
85. (1)
In the youth custody and supervision system
in each province there must be at least
two levels of custody for young persons
distinguished by the degree of restraint
of the young persons in them.
|
|
Designation of youth
custody facilities
|
(2) Every youth custody
facility in a province that contains one
or Read More ..vels of custody shall be designated
by
(a) in the case
of a youth custody facility with only one
level of custody, being the level of custody
with the least degree of restraint of the
young persons in it, the lieutenant governor
in council or his or her delegate; and
(b) in any other
case, the lieutenant governor in council.
|
|
Provincial director
to specify custody level -- committal to
custody
|
(3) The provincial
director shall, when a young person is committed
to custody under paragraph 42(2)(n),
(o), (q) or (r) or
an order is made under subsection 98(3),
paragraph 103(2)(b), subsection 104(1)
or paragraph 109(2)(b), determine
the level of custody appropriate for the
young person, after having taken into account
the factors set out in subsection (5).
|
|
Provincial director
to specify custody level -- transfer
|
(4) The provincial
director may determine a different level
of custody for the young person when the
provincial director is satisfied that the
needs of the young person and the interests
of society would be better served by doing
so, after having taken into account the
factors set out in subsection (5).
|
|
Factors
|
(5) The factors referred
to in subsections (3) and (4) are
(a) that the
appropriate level of custody for the young
person is the one that is the least restrictive
to the young person, having regard to
(i) the seriousness
of the offence in respect of which the young
person was committed to custody and the
circumstances in which that offence was
committed,
(ii) the needs and
circumstances of the young person, including
proximity to family, school, employment
and support services,
(iii) the safety
of other young persons in custody, and
(iv) the interests
of society;
(b) that the
level of custody should allow for the best
possible match of programs to the young
person's needs and behaviour, having regard
to the findings of any assessment in respect
of the young person; and
(c) the likelihood
of escape.
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|
Placement and transfer
at appropriate level
|
(6) After the provincial
director has determined the appropriate
level of custody for the young person under
subsection (3) or (4), the young person
shall be placed in the youth custody facility
that contains that level of custody specified
by the provincial director.
|
|
Notice
|
(7) The provincial
director shall cause a notice in writing
of a determination under subsection (3)
or (4) to be given to the young person and
a parent of the young person and set out
in that notice the reasons for it.
|
|
Procedural safeguards
|
86. (1)
The lieutenant governor in council of a
province shall ensure that procedures are
in place to ensure that the due process
rights of the young person are protected
with respect to a determination made under
subsection 85(3) or (4), including that
the young person be
(a) provided
with any relevant information to which the
provincial director has access in making
the determination, subject to subsection
(2);
(b) given the
opportunity to be heard; and
(c) informed
of any right to a review under section 87.
|
|
Withholding of information
|
(2) Where the provincial
director has reasonable grounds to believe
that providing the information referred
to in paragraph (1)(a) would jeopardize
the safety of any person or the security
of a facility, he or she may authorize the
withholding from the young person of as
much information as is strictly necessary
in order to protect such safety or security.
|
|
Review
|
87. (1)
A young person may apply for a review under
this section of a determination
(a) under subsection
85(3) that would place the young person
in a facility at a level of custody that
has more than a minimal degree of restraint;
or
(b) under subsection
85(4) that would transfer a young person
to a facility at a level of custody with
a higher degree of restraint or increase
the degree of restraint of the young person
in the facility.
|
|
Procedural safeguards
|
(2) The lieutenant
governor in council of a province shall
ensure that procedures are in place for
the review under subsection (1), including
that
(a) the review
board that conducts the review be independent;
(b) the young
person be provided with any relevant information
to which the review board has access, subject
to subsection (3); and
(c) the young
person be given the opportunity to be heard.
|
|
Withholding of information
|
(3) Where the review
board has reasonable grounds to believe
that providing the information referred
to in paragraph (2)(b) would jeopardize
the safety of any person or the security
of a facility, it may authorize the withholding
from the young person of as much information
as is strictly necessary in order to protect
such safety or security.
|
|
Factors
|
(4) The review board
shall take into account the factors referred
to in subsection 85(5) in reviewing a determination.
|
|
Decision is final
|
(5) A decision of the
review board under this section in respect
of a particular determination is final.
|
|
Functions to be
exercised by youth justice court
|
88. The
lieutenant governor in council of a province
may order that the power to make determinations
of the level of custody for young persons
and to review those determinations be exercised
in accordance with the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985. The following provisions
of that Act apply, with any modifications
that the circumstances require, to the exercise
of those powers:
(a) the definitions
"review board" and "progress report" in
subsection 2(1);
(b) section
11;
(c) sections
24.1 to 24.3; and
(d) sections
28 to 31.
|
|
Exception if young
person is twenty years old or older
|
89. (1)
When a young person is twenty years old
or older at the time the youth sentence
is imposed on him or her under paragraph
42(2)(n), (o), (q)
or (r), the young person shall, despite
section 85, be committed to a provincial
correctional facility for adults to serve
the youth sentence.
|
|
If serving youth
sentence in a provincial correctional facility
|
(2) If a young person
is serving a youth sentence in a provincial
correctional facility for adults pursuant
to subsection (1), the youth justice court
may, on application of the provincial director
at any time after the young person begins
to serve a portion of the youth sentence
in a provincial correctional facility for
adults, after giving the young person, the
provincial director and representatives
of the provincial and federal correctional
systems an opportunity to be heard, authorize
the provincial director to direct that the
young person serve the remainder of the
youth sentence in a penitentiary if the
court considers it to be in the best interests
of the young person or in the public interest
and if, at the time of the application,
that remainder is two years or Read More ..
|
|
Provisions to apply
|
(3) If a young person
is serving a youth sentence in a provincial
correctional facility for adults or a penitentiary
under subsection (1) or (2), the
Prisons
and Reformatories Act
and the
Corrections
and Conditional Release Act
, and any
other statute, regulation or rule applicable
in respect of prisoners or offenders within
the meaning of those Acts, statutes, regulations
and rules, apply in respect of the young
person except to the extent that they conflict
with Part 6 (publication, records and information)
of this Act, which Part continues to apply
to the young person.
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Youth worker
|
90. (1)
When a youth sentence is imposed committing
a young person to custody, the provincial
director of the province in which the young
person received the youth sentence and was
placed in custody shall, without delay,
designate a youth worker to work with the
young person to plan for his or her reintegration
into the community, including the preparation
and implementation of a reintegration plan
that sets out the most effective programs
for the young person in order to maximize
his or her chances for reintegration into
the community.
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Role of youth worker
when young person in the community
|
(2) When a portion
of a young person's youth sentence is served
in the community in accordance with section
97 or 105, the youth worker shall supervise
the young person, continue to provide support
to the young person and assist the young
person to respect the conditions to which
he or she is subject, and help the young
person in the implementation of the reintegration
plan.
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Reintegration leave
|
91. (1)
The provincial director of a province may,
subject to any terms or conditions that
he or she considers desirable, authorize,
for a young person committed to a youth
custody facility in the province further
to an order under paragraph 76(1)(a)
(placement when subject to adult sentence)
or a youth sentence imposed under paragraph
42(2)(n), (o), (q)
or (r),
(a) a reintegration
leave from the youth custody facility for
a period not exceeding thirty days if, in
the opinion of the provincial director,
it is necessary or desirable that the young
person be absent, with or without escort,
for medical, compassionate or humanitarian
reasons or for the purpose of rehabilitating
the young person or reintegrating the young
person into the community; or
(b) that the
young person be released from the youth
custody facility on the days and during
the hours that the provincial director specifies
in order that the young person may
(i) attend school
or any other educational or training institution,
(ii) obtain or continue
employment or perform domestic or other
duties required by the young person's family,
(iii) participate
in a program specified by the provincial
director that, in the provincial director's
opinion, will enable the young person to
better carry out employment or improve his
or her education or training, or
(iv) attend an out-patient
treatment program or other program that
provides services that are suitable to addressing
the young person's needs.
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Renewal of reintegration
leave
|
(2) A reintegration
leave authorized under paragraph (1)(a)
may be renewed by the provincial director
for one or Read More ..irty-day periods on reassessment
of the case.
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Revocation of authorization
|
(3) The provincial
director of a province may, at any time,
revoke an authorization made under subsection
(1).
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Arrest and return
to custody
|
(4) If the provincial
director revokes an authorization under
subsection (3) or if a young person fails
to comply with any term or condition of
a reintegration leave or a release from
custody under this section, the young person
may be arrested without warrant and returned
to custody.
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|
Transfer to adult
facility
|
92. (1)
When a young person is committed to custody
under paragraph 42(2)(n), (o),
(q) or (r), the youth justice
court may, on application of the provincial
director made at any time after the young
person attains the age of eighteen years,
after giving the young person, the provincial
director and representatives of the provincial
correctional system an opportunity to be
heard, authorize the provincial director
to direct that the young person, subject
to subsection (3), serve the remainder of
the youth sentence in a provincial correctional
facility for adults, if the court considers
it to be in the best interests of the young
person or in the public interest.
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If serving youth
sentence in a provincial correctional facility
|
(2) The youth justice
court may authorize the provincial director
to direct that a young person, subject to
subsection (3), serve the remainder of a
youth sentence in a penitentiary
(a) if the youth
justice court considers it to be in the
best interests of the young person or in
the public interest;
(b) if the provincial
director applies for the authorization at
any time after the young person begins to
serve a portion of a youth sentence in a
provincial correctional facility for adults
further to a direction made under subsection
(1);
(c) if, at the
time of the application, that remainder
is two years or more thand
(d) so long
as the youth justice court gives the young
person, the provincial director and representatives
of the provincial and federal correctional
systems an opportunity to be heard.
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Provisions to apply
|
(3) If the provincial
director makes a direction under subsection
(1) or (2), the
Prisons and Reformatories
Act
and the
Corrections and Conditional
Release Act
, and any other statute,
regulation or rule applicable in respect
of prisoners and offenders within the meaning
of those Acts, statutes, regulations and
rules, apply in respect of the young person
except to the extent that they conflict
with Part 6 (publication, records and information)
of this Act, which Part continues to apply
to the young person.
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Placement when adult
and youth sentences
|
(4) If a person is
subject to more than one sentence, at least
one of which is a youth sentence imposed
under paragraph 42(2)(n), (o),
(q) or (r) and at least one
of which is a sentence referred to in either
paragraph (b) or (c), he or
she shall serve, in a provincial correctional
facility for adults or a penitentiary in
accordance with section 743.1 (rules respecting
sentences of two or Read More ..ars) of the
Criminal Code, the following:
(a) the remainder
of any youth sentence imposed under paragraph
42(2)(n), (o), (q)
or (r);
(b) an adult
sentence to which an order under paragraph
76(1)(b) or (c) (placement
in adult facility) applies; and
(c) any sentence
of imprisonment imposed otherwise than under
this Act.
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Youth sentence and
adult sentence
|
(5) If a young person
is committed to custody under a youth sentence
under paragraph 42(2)(n), (o),
(q) or (r) and is also already
subject to an adult sentence to which an
order under paragraph 76(1)(a) (placement
when subject to adult sentence) applies,
the young person may, in the discretion
of the provincial director, serve the sentences,
or any portion of the sentences, in a youth
custody facility, in a provincial correctional
facility for adults or, if the unexpired
portion of the sentence is two years or
Read More ..in a penitentiary.
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When young person
reaches twenty years of age
|
93. (1)
When a young person who is committed to
custody under paragraph 42(2)(n),
(o), (q) or (r) is
in a youth custody facility when the young
person attains the age of twenty years,
the young person shall be transferred to
a provincial correctional facility for adults
to serve the remainder of the youth sentence,
unless the provincial director orders that
the young person continue to serve the youth
sentence in a youth custody facility.
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If serving youth
sentence in a provincial correctional facility
|
(2) If a young person
is serving a portion of a youth sentence
in a provincial correctional facility for
adults pursuant to a transfer under subsection
(1), the youth justice court may, on application
of the provincial director after the transfer,
after giving the young person, the provincial
director and representatives of the provincial
and federal correctional systems an opportunity
to be heard, authorize the provincial director
to direct that the young person serve the
remainder of the youth sentence in a penitentiary
if the court considers it to be in the best
interests of the young person or in the
public interest and if, at the time of the
application, that remainder is two years
or Read More ..
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Provisions to apply
|
(3) If the provincial
director makes the direction, the
Prisons
and Reformatories Act
and the
Corrections
and Conditional Release Act
, and any
other statute, regulation or rule applicable
in respect of prisoners and offenders within
the meaning of those Acts, statutes, regulations
and rules, apply in respect of the young
person except to the extent that they conflict
with Part 6 (publication, records and information)
of this Act, which Part continues to apply
to the young person.
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Annual review
|
94. (1)
When a young person is committed to custody
pursuant to a youth sentence under paragraph
42(2)(n), (o), (q)
or (r) for a period exceeding one
year, the provincial director of the province
in which the young person is held in custody
shall cause the young person to be brought
before the youth justice court without delay
at the end of one year from the date of
the most recent youth sentence imposed in
respect of the offence -- and at the end
of every subsequent year from that date
-- and the youth justice court shall review
the youth sentence.
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Annual review
|
(2) When a young person
is committed to custody pursuant to youth
sentences imposed under paragraph 42(2)(n),
(o), (q) or (r) in
respect of more than one offence for a total
period exceeding one year, the provincial
director of the province in which the young
person is held in custody shall cause the
young person to be brought before the youth
justice court without delay at the end of
one year from the date of the earliest youth
sentence imposed -- and at the end of every
subsequent year from that date -- and the
youth justice court shall review the youth
sentences.
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Optional review
|
(3) When a young person
is committed to custody pursuant to a youth
sentence imposed under paragraph 42(2)(n),
(o), (q) or (r) in
respect of an offence, the provincial director
may, on the provincial director's own initiative,
and shall, on the request of the young person,
the young person's parent or the Attorney
General, on any of the grounds set out in
subsection (6), cause the young person to
be brought before a youth justice court
to review the youth sentence,
(a) when the
youth sentence is for a period not exceeding
one year, once at any time after the expiry
of the greater of
(i) thirty days
after the date of the youth sentence imposed
under subsection 42(2) in respect of the
offence, and
(ii) one third of
the period of the youth sentence imposed
under subsection 42(2) in respect of the
offence; and
(b) when the
youth sentence is for a period exceeding
one year, at any time after six months after
the date of the most recent youth sentence
imposed in respect of the offence.
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Time for optional
review
|
(4) The young person
may be brought before the youth justice
court at any other time, with leave of the
youth justice court judge.
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Review
|
(5) If a youth justice
court is satisfied that there are grounds
for review under subsection (6), the court
shall review the youth sentence.
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Grounds for review
|
(6) A youth sentence
imposed in respect of a young person may
be reviewed under subsection (5)
(a) on the ground
that the young person has made sufficient
progress to justify a change in the youth
sentence;
(b) on the ground
that the circumstances that led to the youth
sentence have changed materially;
(c) on the ground
that new services or programs are available
that were not available at the time of the
youth sentence;
(d) on the ground
that the opportunities for rehabilitation
are now greater in the community; or
(e) on any other
ground that the youth justice court considers
appropriate.
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No review if appeal
pending
|
(7) Despite any other
provision of this section, no review of
a youth sentence in respect of which an
appeal has been taken shall be made under
this section until all proceedings in respect
of any such appeal have been completed.
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Youth justice court
may order appearance of young person for
review
|
(8) When a provincial
director is required under subsections (1)
to (3) to cause a young person to be brought
before the youth justice court and fails
to do so, the youth justice court may, on
application made by the young person, his
or her parent or the Attorney General, or
on its own motion, order the provincial
director to cause the young person to be
brought before the youth justice court.
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Progress report
|
(9) The youth justice
court shall, 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.
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Additional information
in progress report
|
(10) A person preparing
a progress report in respect of a young
person may include in the report any information
relating to the personal and family history
and present environment of the young person
that he or she considers advisable.
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Written or oral
report
|
(11) A progress report
shall be in writing unless it cannot reasonably
be committed to writing, in which case it
may, with leave of the youth justice court,
be submitted orally in court.
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Subsections 40(4)
to (10) to apply
|
(12) Subsections 40(4)
to (10) (procedures respecting pre-sentence
reports) apply, with any modifications that
the circumstances require, in respect of
progress reports.
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Notice of review
from provincial director
|
(13) When a youth sentence
imposed in respect of a young person is
to be reviewed under subsection (1) or (2),
the provincial director shall cause any
notice that may be directed by rules of
court applicable to the youth justice court
or, in the absence of such a direction,
at least five clear days notice of the review
to be given in writing to the young person,
a parent of the young person and the Attorney
General.
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|
Notice of review
from person requesting it
|
(14) When a review
of a youth sentence imposed in respect of
a young person is requested under subsection
(3), the person requesting the review shall
cause any notice that may be directed by
rules of court applicable to the youth justice
court or, in the absence of such a direction,
at least five clear days notice of the review
to be given in writing to the young person,
a parent of the young person and the Attorney
General.
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Statement of right
to counsel
|
(15) A notice given
to a parent under subsection (13) or (14)
shall include a statement that the young
person whose youth sentence is to be reviewed
has the right to be represented by counsel.
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Service of notice
|
(16) A notice under
subsection (13) or (14) may be served personally
or may be sent by confirmed delivery service.
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Notice may be waived
|
(17) Any of the persons
entitled to notice under subsection (13)
or (14) may waive the right to that notice.
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If notice not given
|
(18) If notice under
subsection (13) or (14) is not given in
accordance with this section, the youth
justice court may
(a) adjourn
the proceedings and order that the notice
be given in the manner and to the persons
that it directs; or
(b) dispense
with the notice if, in the opinion of the
court, having regard to the circumstances,
notice may be dispensed with.
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|
Decision of the
youth justice court after review
|
(19) 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, having regard to the needs
of the young person and the interests of
society,
(a) confirm
the youth sentence;
(b) release
the young person from custody and place
the young person under conditional supervision
in accordance with the procedure set out
in section 105, with any modifications that
the circumstances require, for a period
not exceeding the remainder of the youth
sentence that the young person is then serving;
or
(c) if the provincial
director so recommends, convert a youth
sentence under paragraph 42(2)(r)
to a youth sentence under paragraph 42(2)(q)
if the offence was murder or to a youth
sentence under paragraph 42(2)(n)
or (o), as the case may be, if the
offence was an offence other than murder.
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Orders are youth
sentences
|
95. Orders
under subsections 97(2) (conditions) and
98(3) (continuation of custody), paragraph
103(2)(b) (continuation of custody),
subsections 104(1) (continuation of custody)
and 105(1) (conditional supervision) and
paragraph 109(2)(b) (continuation
of suspension of conditional supervision)
are deemed to be youth sentences for the
purposes of section 94 (reviews).
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Recommendation
of provincial director for conditional supervision
of young person
|
96. (1)
When a young person is held in custody pursuant
to a youth sentence under paragraph 42(2)(n),
(o), (q) or (r), the
provincial director may, if satisfied that
the needs of the young person and the interests
of society would be better served by doing
so, make a recommendation to the youth justice
court that the young person be released
from custody and placed under conditional
supervision.
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Notice
|
(2) If the provincial
director makes a recommendation, the provincial
director shall cause a notice to be given
in writing that includes the reasons for
the recommendation and the conditions that
the provincial director would recommend
be set under section 105 to the young person,
a parent of the young person and the Attorney
General and give a copy of the notice to
the youth justice court.
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Application to court
for review of recommendation
|
(3) If notice of a
recommendation is made under subsection
(2) with respect to a youth sentence imposed
on a young person, the youth justice court
shall, if an application for review is made
by the young person, the young person's
parent or the Attorney General within ten
days after service of the notice, review
the youth sentence without delay.
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Subsections 94(7),
(9) to (12) and (14) to (19) apply
|
(4) Subject to subsection
(5), subsections 94(7) (no review of appeal
pending), (9) to (12) (progress reports)
and (14) to (19) (provisions respecting
notice and decision of the youth justice
court) 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.
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If no application
for review made under subsection (3)
|
(5) A youth justice
court that receives a notice under subsection
(2) shall, if no application for a review
is made under subsection (3),
(a) order the
release of the young person and place the
young person under conditional supervision
in accordance with section 105, having regard
to the recommendations of the provincial
director; or
(b) if the court
considers it advisable, order that the young
person not be released.
For greater certainty,
an order under this subsection may be made
without a hearing.
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Notice when no release
ordered
|
(6) When a youth justice
court orders that the young person not be
released under paragraph (5)(b),
it shall cause a notice of its order to
be given to the provincial director without
delay.
|
|
Provincial director
may request review
|
(7) When the provincial
director is given a notice under subsection
(6), he or she may request a review under
this section.
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|
When provincial
director requests a review
|
(8) When the provincial
director requests a review under subsection
(7),
(a) the provincial
director shall cause any notice that may
be directed by rules of court applicable
to the youth justice court or, in the absence
of such a direction, at least five clear
days notice of the review to be given in
writing to the young person, a parent of
the young person and the Attorney General;
and
(b) the youth
justice court shall review the youth sentence
without delay after the notice required
under paragraph (a) is given.
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Conditions to be
included in custody and supervision order
|
97. (1)
Every youth sentence imposed under paragraph
42(2)(n) shall contain the following
conditions, namely, that the young person,
while serving the portion of the youth sentence
under supervision in the community,
(a) keep the
peace and be of good behaviour;
(b) report to
the provincial director and then be under
the supervision of the provincial director;
(c) inform the
provincial director immediately on being
arrested or questioned by the police;
(d) report to
the police, or any named individual, as
instructed by the provincial director;
(e) advise the
provincial director of the young person's
address of residence and report immediately
to the provincial director any change
(i) in that address,
(ii) in the young
person's normal occupation, including employment,
vocational or educational training and volunteer
work,
(iii) in the young
person's family or financial situation,
and
(iv) that may reasonably
be expected to affect the young person's
ability to comply with the conditions of
the sentence; and
(f) not own,
possess or have the control of any weapon,
ammunition, prohibited ammunition, prohibited
device or explosive substance, except as
authorized in writing by the provincial
director for the purposes of the young person
participating in a program specified in
the authorization.
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Other conditions
|
(2) The provincial
director may set additional conditions that
support and address the needs of the young
person, promote the reintegration of the
young person into the community and offer
adequate protection to the public from the
risk that the young person might otherwise
present. The provincial director shall,
in setting the conditions, take into account
the needs of the young person, the most
effective programs for the young person
in order to maximize his or her chances
for reintegration into the community, the
nature of the offence and the ability of
the young person to comply with the conditions.
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|
Communication of
conditions
|
(3) The provincial
director shall
(a) cause the
conditions to be read by or to the young
person bound by them;
(b) explain
or cause to be explained to the young person
the purpose and effect of the conditions,
and confirm that the young person understands
them; and
(c) cause a
copy of the conditions to be given to the
young person, and to a parent of the young
person.
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|
Provisions to apply
|
(4) Subsections 56(3)
(endorsement of order by young person) and
(4) (validity of order) apply, with any
modifications that the circumstances require,
in respect of conditions under this section.
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|
Application for
continuation of custody
|
98. (1)
Within a reasonable time before the expiry
of the custodial portion of a young person's
youth sentence, the Attorney General or
the provincial director may apply to the
youth justice court for an order that the
young person remain in custody for a period
not exceeding the remainder of the youth
sentence.
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Continuation of
custody
|
(2) If the hearing
for an application under subsection (1)
cannot be completed before the expiry of
the custodial portion of the youth sentence,
the court may order that the young person
remain in custody pending the determination
of the application if the court is satisfied
that the application was made in a reasonable
time, having regard to all the circumstances,
and that there are compelling reasons for
keeping the young person in custody.
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Decision
|
(3) The youth justice
court may, after giving both parties and
a parent of the young person an opportunity
to be heard, order that a young person remain
in custody for a period not exceeding the
remainder of the youth sentence, if it is
satisfied that there are reasonable grounds
to believe that
(a) the young
person is likely to commit a serious violent
offence before the expiry of the youth sentence
he or she is then serving; and
(b) the conditions
that would be imposed on the young person
if he or she were to serve a portion of
the youth sentence in the community would
not be adequate to prevent the commission
of the offence.
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|
Factors
|
(4) For the purpose
of determining an application under subsection
(1), the youth justice court shall take
into consideration any factor that is relevant
to the case of the young person, including
(a) evidence
of a pattern of persistent violent behaviour
and, in particular,
(i) the number of
offences committed by the young person that
caused physical or psychological harm to
any other person,
(ii) the young person's
difficulties in controlling violent impulses
to the point of endangering the safety of
any other person,
(iii) the use of
weapons in the commission of any offence,
(iv) explicit threats
of violence,
(v) behaviour of
a brutal nature associated with the commission
of any offence, and
(vi) a substantial
degree of indifference on the part of the
young person as to the reasonably foreseeable
consequences, to other persons, of the young
person's behaviour;
(b) psychiatric
or psychological evidence that a physical
or mental illness or disorder of the young
person is of such a nature that the young
person is likely to commit, before the expiry
of the youth sentence the young person is
then serving, a serious violent offence;
(c) reliable
information that satisfies the youth justice
court that the young person is planning
to commit, before the expiry of the youth
sentence the young person is then serving,
a serious violent offence;
(d) the availability
of supervision programs in the community
that would offer adequate protection to
the public from the risk that the young
person might otherwise present until the
expiry of the youth sentence the young person
is then serving;
(e) whether
the young person is more likely to reoffend
if he or she serves his or her youth sentence
entirely in custody without the benefits
of serving a portion of the youth sentence
in the community under supervision; and
(f) evidence
of a pattern of committing violent offences
while he or she was serving a portion of
a youth sentence in the community under
supervision.
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|
Report
|
99. (1)
For the purpose of determining an application
under section 98 (application for continuation
of custody), the youth justice court shall
require the provincial director to cause
to be prepared, and to submit to the youth
justice court, a report setting out any
information of which the provincial director
is aware with respect to the factors set
out in subsection 98(4) that may be of assistance
to the court.
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|
Written or oral
report
|
(2) A report referred
to in subsection (1) shall be in writing
unless it cannot reasonably be committed
to writing, in which case it may, with leave
of the youth justice court, be submitted
orally in court.
|
|
Provisions apply
|
(3) Subsections 40(4)
to (10) (procedures respecting pre-sentence
reports) apply, with any modifications that
the circumstances require, in respect of
a report referred to in subsection (1).
|
|
Notice of hearing
|
(4) When an application
is made under section 98 (application for
continuation of custody) in respect of a
young person, the provincial director shall
cause to be given, to the young person and
to a parent of the young person, at least
five clear days notice of the hearing in
writing.
|
|
Statement of right
to counsel
|
(5) Any notice given
to a parent under subsection (4) shall include
a statement that the young person has the
right to be represented by counsel.
|
|
Service of notice
|
(6) A notice under
subsection (4) may be served personally
or may be sent by confirmed delivery service.
|
|
When notice not
given
|
(7) When notice under
subsection (4) is not given in accordance
with this section, the youth justice court
may
(a) adjourn
the hearing and order that the notice be
given in any manner and to any person that
it directs; or
(b) dispense
with the giving of the notice if, in the
opinion of the youth justice court, having
regard to the circumstances, the giving
of the notice may be dispensed with.
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|
Reasons
|
100. When
a youth justice court makes an order under
subsection 98(3) (decision for continued
custody), it shall state its reasons for
the order in the record of the case and
shall provide, or cause to be provided,
to the young person in respect of whom the
order was made, the counsel and a parent
of the young person, the Attorney General
and the provincial director
(a) a copy of
the order; and
(b) on request,
a transcript or copy of the reasons for
the order.
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|
Review of youth
justice court decision
|
101. (1)
An order made under subsection 98(3) (decision
for continued custody) in respect of a young
person, or the refusal to make such an order,
shall, on application of the young person,
the young person's counsel, the Attorney
General or the provincial director made
within thirty days after the decision of
the youth justice court, be reviewed by
the court of appeal, and that court may,
in its discretion, confirm or reverse the
decision of the youth justice court.
|
|
Extension of time
to make application
|
(2) The court of appeal
may, at any time, extend the time within
which an application under subsection (1)
may be made.
|
|
Notice of application
|
(3) A person who proposes
to apply for a review under subsection (1)
shall give notice of the application in
the manner and within the period of time
that may be directed by rules of court.
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|
Breach of conditions
|
102. (1)
If the provincial director has reasonable
grounds to believe that a young person has
breached or is about to breach a condition
to which he or she is subject under section
97 (conditions to be included in custody
and supervision orders), the provincial
director may, in writing,
(a) permit the
young person to continue to serve a portion
of his or her youth sentence in the community,
on the same or different conditions; or
(b) if satisfied
that the breach is a serious one that increases
the risk to public safety, order that the
young person be remanded to any youth custody
facility that the provincial director considers
appropriate until a review is conducted.
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|
Provisions apply
|
(2) Sections 107 (apprehension)
and 108 (review by provincial director)
apply, with any modifications that the circumstances
require, to an order under paragraph (1)(b).
|
|
Review by youth
justice court
|
103. (1)
When the case of a young person is referred
to the youth justice court under section
108 (review by provincial director), the
provincial director shall, without delay,
cause the young person to be brought before
the youth justice court, and the youth justice
court shall, after giving the young person
an opportunity to be heard,
(a) if the court
is not satisfied on reasonable grounds that
the young person has breached or was about
to breach one of the conditions under which
he or she was being supervised in the community,
order that the young person continue to
serve a portion of his or her youth sentence
in the community, on the same or different
conditions; or
(b) if the court
is satisfied on reasonable grounds that
the young person has breached or was about
to breach one of the conditions under which
he or she was being supervised in the community,
make an order under subsection (2).
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|
Order
|
(2) On completion of
a review under subsection (1), the youth
justice court
(a) shall order
that the young person continue to serve
the remainder of the youth sentence the
young person is then serving in the community,
and when the court does so, the court may
vary the existing conditions or impose new
conditions; or
(b) shall, despite
paragraph 42(2)(n) (custody and supervision
order), order that the young person remain
in custody for a period that does not exceed
the remainder of the youth sentence the
young person is then serving, if the youth
justice court is satisfied that the breach
of the conditions was serious.
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|
Provisions apply
|
(3) Subsections 109(4)
to (8) apply, with any modifications that
the circumstances require, in respect of
a review under this section.
|
|
Continuation of
custody
|
104. (1)
When a young person on whom a youth sentence
under paragraph 42(2)(o), (q)
or (r) has been imposed is held in
custody and an application is made to the
youth justice court by the Attorney General,
within a reasonable time before the expiry
of the custodial portion of the youth sentence,
the provincial director of the province
in which the young person is held in custody
shall cause the young person to be brought
before the youth justice court and the youth
justice court may, after giving both parties
and a parent of the young person an opportunity
to be heard and if it is satisfied that
there are reasonable grounds to believe
that the young person is likely to commit
an offence causing the death of or serious
harm to another person before the expiry
of the youth sentence the young person is
then serving, order that the young person
remain in custody for a period not exceeding
the remainder of the youth sentence.
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|
Continuation of
custody
|
(2) If the hearing
of an application under subsection (1) cannot
be completed before the expiry of the custodial
portion of the youth sentence, the court
may order that the young person remain in
custody until the determination of the application
if the court is satisfied that the application
was made in a reasonable time, having regard
to all the circumstances, and that there
are compelling reasons for keeping the young
person in custody.
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|
Factors
|
(3) For the purpose
of determining an application under subsection
(1), the youth justice court shall take
into consideration any factor that is relevant
to the case of the young person, including
(a) evidence
of a pattern of persistent violent behaviour
and, in particular,
(i) the number of
offences committed by the young person that
caused physical or psychological harm to
any other person,
(ii) the young person's
difficulties in controlling violent impulses
to the point of endangering the safety of
any other person,
(iii) the use of
weapons in the commission of any offence,
(iv) explicit threats
of violence,
(v) behaviour of
a brutal nature associated with the commission
of any offence, and
(vi) a substantial
degree of indifference on the part of the
young person as to the reasonably foreseeable
consequences, to other persons, of the young
person's behaviour;
(b) psychiatric
or psychological evidence that a physical
or mental illness or disorder of the young
person is of such a nature that the young
person is likely to commit, before the expiry
of the youth sentence the young person is
then serving, an offence causing the death
of or serious harm to another person;
(c) reliable
information that satisfies the youth justice
court that the young person is planning
to commit, before the expiry of the youth
sentence the young person is then serving,
an offence causing the death of or serious
harm to another person; and
(d) the availability
of supervision programs in the community
that would offer adequate protection to
the public from the risk that the young
person might otherwise present until the
expiry of the youth sentence the young person
is then serving.
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|
Youth justice court
to order appearance of young person
|
(4) If a provincial
director fails to cause a young person to
be brought before the youth justice court
under subsection (1), the youth justice
court shall order the provincial director
to cause the young person to be brought
before the youth justice court without delay.
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|
Provisions to apply
|
(5) Sections 99 to
101 apply, with any modifications that the
circumstances require, in respect of an
order made, or the refusal to make an order,
under this section.
|
|
If application denied
|
(6) If an application
under this section is denied, the court
may, with the consent of the young person,
the Attorney General and the provincial
director, proceed as though the young person
had been brought before the court as required
under subsection 105(1).
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|
Conditional supervision
|
105. (1)
The provincial director of the province
in which a young person on whom a youth
sentence under paragraph 42(2)(o),
(q) or (r) has been imposed
is held in custody or, if applicable, with
respect to whom an order has been made under
subsection 104(1) (continuation of custody),
shall cause the young person to be brought
before the youth justice court at least
one month before the expiry of the custodial
portion of the youth sentence. The court
shall, after giving the young person an
opportunity to be heard, by order, set the
conditions of the young person's conditional
supervision.
|
|
Conditions to be
included in order
|
(2) The youth justice
court shall include in the order under subsection
(1) the following conditions, namely, that
the young person
(a) keep the
peace and be of good behaviour;
(b) appear before
the youth justice court when required by
the court to do so;
(c) report to
the provincial director immediately on release,
and then be under the supervision of the
provincial director or a person designated
by the youth justice court;
(d) inform the
provincial director immediately on being
arrested or questioned by the police;
(e) report to
the police, or any named individual, as
instructed by the provincial director;
(f) advise the
provincial director of the young person's
address of residence on release and after
release report immediately to the clerk
of the youth justice court or the provincial
director any change
(i) in that address,
(ii) in the young
person's normal occupation, including employment,
vocational or educational training and volunteer
work,
(iii) in the young
person's family or financial situation,
and
(iv) that may reasonably
be expected to affect the young person's
ability to comply with the conditions of
the order;
(g) not own,
possess or have the control of any weapon,
ammunition, prohibited ammunition, prohibited
device or explosive substance, except as
authorized by the order; and
(h) comply with
any reasonable instructions that the provincial
director considers necessary in respect
of any condition of the conditional supervision
in order to prevent a breach of that condition
or to protect society.
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|
Other conditions
|
(3) In setting conditions
for the purposes of subsection (1), the
youth justice court may include in the order
the following conditions, namely, that the
young person
(a) on release,
travel directly to the young person's place
of residence, or to any other place that
is noted in the order;
(b) make reasonable
efforts to obtain and maintain suitable
employment;
(c) attend school
or any other place of learning, training
or recreation that is appropriate, if the
court is satisfied that a suitable program
is available for the young person at such
a place;
(d) reside with
a parent, or any other adult that the court
considers appropriate, who is willing to
provide for the care and maintenance of
the young person;
(e) reside in
any place that the provincial director may
specify;
(f) remain within
the territorial jurisdiction of one or more
courts named in the order;
(g) comply with
conditions set out in the order that support
and address the needs of the young person
and promote the reintegration of the young
person into the community; and
(h) comply with
any other conditions set out in the order
that the court considers appropriate, including
conditions for securing the young person's
good conduct and for preventing the young
person from repeating the offence or committing
other offences.
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|
Temporary conditions
|
(4) When a provincial
director is required under subsection (1)
to cause a young person to be brought before
the youth justice court but cannot do so
for reasons beyond the young person's control,
the provincial director shall so advise
the youth justice court and the court shall,
by order, set any temporary conditions for
the young person's conditional supervision
that are appropriate in the circumstances.
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|
Conditions to be
set at first opportunity
|
(5) When an order is
made under subsection (4), the provincial
director shall bring the young person before
the youth justice court as soon after the
order is made as the circumstances permit
and the court shall then set the conditions
of the young person's conditional supervision.
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|
Report
|
(6) For the purpose
of setting conditions under this section,
the youth justice court shall require the
provincial director to cause to be prepared,
and to submit to the youth justice court,
a report setting out any information that
may be of assistance to the court.
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|
Provisions apply
|
(7) Subsections 99(2)
to (7) (provisions respecting reports and
notice) and 104(4) (ordering appearance
of young person) apply, with any modifications
that the circumstances require, in respect
of any proceedings held under subsection
(1).
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|
Provisions apply
|
(8) Subsections 56(1)
to (4) (provisions respecting probation
orders), (7) (notice to appear) and (8)
(warrant in default) and section 101 (review
of youth justice court decision) apply,
with any modifications that the circumstances
require, in respect of an order made under
subsection (1).
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|
Suspension of
conditional supervision
|
106. If
the provincial director has reasonable grounds
to believe that a young person has breached
or is about to breach a condition of an
order made under subsection 105(1), the
provincial director may, in writing,
(a) suspend
the conditional supervision; and
(b) order that
the young person be remanded to any youth
custody facility that the provincial director
considers appropriate until a review is
conducted under section 108 and, if applicable,
section 109.
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|
Apprehension
|
107. (1)
If the conditional supervision of a young
person is suspended under section 106, the
provincial director may issue a warrant
in writing, authorizing the apprehension
of the young person and, until the young
person is apprehended, the young person
is deemed not to be continuing to serve
the youth sentence the young person is then
serving.
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|
Warrants
|
(2) A warrant issued
under subsection (1) shall be executed by
any peace officer to whom it is given at
any place in Canada and has the same force
and effect in all parts of Canada as if
it had been originally issued or subsequently
endorsed by a provincial court judge or
other lawful authority having jurisdiction
in the place where it is executed.
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|
Peace officer may
arrest
|
(3) If a peace officer
believes on reasonable grounds that a warrant
issued under subsection (1) is in force
in respect of a young person, the peace
officer may arrest the young person without
the warrant at any place in Canada.
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|
Requirement to bring
before provincial director
|
(4) If a young person
is arrested under subsection (3) and detained,
the peace officer making the arrest shall
cause the young person to be brought before
the provincial director or a person designated
by the provincial director
(a) if the provincial
director or the designated person is available
within a period of twenty-four hours after
the young person is arrested, without unreasonable
delay and in any event within that period;
and
(b) if the provincial
director or the designated person is not
available within that period, as soon as
possible.
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|
Release or remand
in custody
|
(5) If a young person
is brought before the provincial director
or a person designated by the provincial
director under subsection (4), the provincial
director or the designated person
(a) if not satisfied
that there are reasonable grounds to believe
that the young person is the young person
in respect of whom the warrant referred
to in subsection (1) was issued, shall release
the young person; or
(b) if satisfied
that there are reasonable grounds to believe
that the young person is the young person
in respect of whom the warrant referred
to in subsection (1) was issued, may remand
the young person in custody to await execution
of the warrant, but if no warrant for the
young person's arrest is executed within
a period of forty-eight hours after the
time the young person is remanded in custody,
the person in whose custody the young person
then is shall release the young person.
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|
Review by provincial
director
|
108. Without
delay after the remand to custody of a young
person whose conditional supervision has
been suspended under section 106, or without
delay after being informed of the arrest
of such a young person, the provincial director
shall review the case and, within forty-eight
hours, cancel the suspension of the conditional
supervision or refer the case to the youth
justice court for a review under section
109.
|
|
Review by youth
justice court
|
109. (1)
If the case of a young person is referred
to the youth justice court under section
108, the provincial director shall, without
delay, cause the young person to be brought
before the youth justice court, and the
youth justice court shall, after giving
the young person an opportunity to be heard,
(a) if the court
is not satisfied on reasonable grounds that
the young person has breached or was about
to breach a condition of the conditional
supervision, cancel the suspension of the
conditional supervision; or
(b) if the court
is satisfied on reasonable grounds that
the young person has breached or was about
to breach a condition of the conditional
supervision, review the decision of the
provincial director to suspend the conditional
supervision and make an order under subsection
(2).
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|
Order
|
(2) On completion of
a review under subsection (1), the youth
justice court shall order
(a) the cancellation
of the suspension of the conditional supervision,
and when the court does so, the court may
vary the conditions of the conditional supervision
or impose new conditions;
(b) in a case
other than a deferred custody and supervision
order made under paragraph 42(2)(p),
the continuation of the suspension of the
conditional supervision for any period of
time, not to exceed the remainder of the
youth sentence the young person is then
serving, that the court considers appropriate,
and when the court does so, the court shall
order that the young person remain in custody;
or
(c) in the case
of a deferred custody and supervision order
made under paragraph 42(2)(p), that
the young person serve the remainder of
the order as if it were a custody and supervision
order under paragraph 42(2)(n).
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|
Custody and supervision
order
|
(3) After a court has
made a direction under paragraph (2)(c),
the provisions of this Act applicable to
orders under paragraph 42(2)(n) apply
in respect of the deferred custody and supervision
order.
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|
Factors to be considered
|
(4) In making its decision
under subsection (2), the court shall consider
the length of time the young person has
been subject to the order, whether the young
person has previously contravened it, and
the nature of the contravention, if any.
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|
Reasons
|
(5) When a youth justice
court makes an order under subsection (2),
it shall state its reasons for the order
in the record of the case and shall give,
or cause to be given, to the young person
in respect of whom the order was made, the
counsel and a parent of the young person,
the Attorney General and the provincial
director,
(a) a copy of
the order; and
(b) on request,
a transcript or copy of the reasons for
the order.
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|
Report
|
(6) For the purposes
of a review under subsection (1), the youth
justice court shall require the provincial
director to cause to be prepared, and to
submit to the youth justice court, a report
setting out any information of which the
provincial director is aware that may be
of assistance to the court.
|
|
Provisions apply
|
(7) Subsections 99(2)
to (7) (provisions respecting reports and
notice) and 105(6) (report for the purpose
of setting conditions) apply, with any modifications
that the circumstances require, in respect
of a review under this section.
|
|
Provisions apply
|
(8) Section 101 (review
of youth justice court decision) applies,
with any modifications that the circumstances
require, in respect of an order made under
subsection (2).
|
|
PART 6
PUBLICATION, RECORDS AND INFORMATION
|
|
Protection of Privacy
of Young Persons
|
|
Identity of offender
not to be published
|
110. (1)
Subject to this section, no person shall
publish the name of a young person, or any
other information related to a young person,
if it would identify the young person as
a young person dealt with under this Act.
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|
Limitation
|
(2) Subsection (1)
does not apply
(a) in a case
where the information relates to a young
person who has received an adult sentence;
(b) subject
to sections 65 (young person not liable
to adult sentence) and 75 (youth sentence
imposed despite presumptive offence), in
a case where the information relates to
a young person who has received a youth
sentence for an offence set out in paragraph
(a) of the definition "presumptive
offence" in subsection 2(1), or an offence
set out in paragraph (b) of that
definition for which the Attorney General
has given notice under subsection 64(2)
(intention to seek adult sentence); and
(c) in a case
where the publication of information is
made in the course of the administration
of justice, if it is not the purpose of
the publication to make the information
known in the community.
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|
Exception
|
(3) A young person
referred to in subsection (1) may, after
he or she attains the age of eighteen years,
publish or cause to be published information
that would identify him or her as having
been dealt with under this Act or the Young Offenders Act, chapter Y-1 of
the Revised Statutes of Canada, 1985, provided
that he or she is not in custody pursuant
to either Act at the time of the publication.
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|
Ex parte
application for leave to publish
|
(4) A youth justice
court judge shall, on the ex parte
application of a peace officer, make an
order permitting any person to publish information
that identifies a young person as having
committed or allegedly committed an indictable
offence, if the judge is satisfied that
(a) there is
reason to believe that the young person
is a danger to others; and
(b) publication
of the information is necessary to assist
in apprehending the young person.
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|
Order ceases to
have effect
|
(5) An order made under
subsection (4) ceases to have effect five
days after it is made.
|
|
Application for
leave to publish
|
(6) The youth justice
court may, on the application of a young
person referred to in subsection (1), make
an order permitting the young person to
publish information that would identify
him or her as having been dealt with under
this Act or the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, if the court is satisfied that the
publication would not be contrary to the
young person's best interests or the public
interest.
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|
Identity of victim
or witness not to be published
|
111. (1)
Subject to this section, no person shall
publish the name of a child or young person,
or any other information related to a child
or a young person, if it would identify
the child or young person as having been
a victim of, or as having appeared as a
witness in connection with, an offence committed
or alleged to have been committed by a young
person.
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|
Exception
|
(2) Information that
would serve to identify a child or young
person referred to in subsection (1) as
having been a victim or a witness may be
published, or caused to be published, by
(a) that child
or young person after he or she attains
the age of eighteen years or before that
age with the consent of his or her parents;
or
(b) the parents
of that child or young person if he or she
is deceased.
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|
Application for
leave to publish
|
(3) The youth justice
court may, on the application of a child
or a young person referred to in subsection
(1), make an order permitting the child
or young person to publish information that
would identify him or her as having been
a victim or a witness if the court is satisfied
that the publication would not be contrary
to his or her best interests or the public
interest.
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|
Non-application
|
112. Once
information is published under subsection
110(3) or (6) or 111(2) or (3), subsection
110(1) (identity of offender not to be published)
or 111(1) (identity of victim or witness
not to be published), as the case may be,
no longer applies in respect of the information.
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|
Fingerprints and
Photographs
|
|
Identification
of Criminals Act
applies
|
113. (1)
The Identification of Criminals Act
applies in respect of young persons.
|
|
Limitation
|
(2) No fingerprint,
palmprint or photograph or other measurement,
process or operation referred to in the
Identification of Criminals Act shall
be taken of, or applied in respect of, a
young person who is charged with having
committed an offence except in the circumstances
in which an adult may, under that Act, be
subjected to the measurements, processes
and operations.
|
|
Records That May
Be Kept
|
|
Youth justice
court, review board and other courts
|
114. A
youth justice court, review board or any
court dealing with matters arising out of
proceedings under this Act may keep a record
of any case that comes before it arising
under this Act.
|
|
Police records
|
115. (1)
A record relating to any offence alleged
to have been committed by a young person,
including the original or a copy of any
fingerprints or photographs of the young
person, may be kept by any police force
responsible for or participating in the
investigation of the offence.
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|
Police records
|
(2) When a young person
is charged with having committed an offence
in respect of which an adult may be subjected
to any measurement, process or operation
referred to in the
Identification of
Criminals Act
, the police force responsible
for the investigation of the offence may
provide a record relating to the offence
to the Royal Canadian Mounted Police. If
the young person is found guilty of the
offence, the police force shall provide
the record.
|
|
Records held by
R.C.M.P.
|
(3) The Royal Canadian
Mounted Police shall keep the records provided
under subsection (2) in the central repository
that the Commissioner of the Royal Canadian
Mounted Police may, from time to time, designate
for the purpose of keeping criminal history
files or records of offenders or keeping
records for the identification of offenders.
|
|
Government records
|
116. (1)
A department or an agency of any government
in Canada may keep records containing information
obtained by the department or agency
(a) for the
purposes of an investigation of an offence
alleged to have been committed by a young
person;
(b) for use
in proceedings against a young person under
this Act;
(c) for the
purpose of administering a youth sentence
or an order of the youth justice court;
(d) for the
purpose of considering whether to use extrajudicial
measures to deal with a young person; or
(e) as a result
of the use of extrajudicial measures to
deal with a young person.
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|
Other records
|
(2) A person or organization
may keep records containing information
obtained by the person or organization
(a) as a result
of the use of extrajudicial measures to
deal with a young person; or
(b) for the
purpose of administering or participating
in the administration of a youth sentence.
|
|
Access to Records
|
|
Exception -- adult
sentence
|
117. Sections
118 to 129 do not apply to records kept
in respect of an offence for which an adult
sentence has been imposed once the time
allowed for the taking of an appeal has
expired or, if an appeal is taken, all proceedings
in respect of the appeal have been completed
and the appeal court has upheld an adult
sentence. The record shall be dealt with
as a record of an adult and, for the purposes
of the Criminal Records Act, the
finding of guilt in respect of the offence
for which the record is kept is deemed to
be a conviction.
|
|
No access unless
authorized
|
118. (1)
Except as authorized or required by this
Act, no person shall be given access to
a record kept under sections 114 to 116,
and no information contained in it may be
given to any person, where to do so would
identify the young person to whom it relates
as a young person dealt with under this
Act.
|
|
Exception for employees
|
(2) No person who is
employed in keeping or maintaining records
referred to in subsection (1) is restricted
from doing anything prohibited under subsection
(1) with respect to any other person so
employed.
|
|
Persons having
access to records
|
119. (1)
Subject to subsections (4) to (6), from
the date that a record is created until
the end of the applicable period set out
in subsection (2), the following persons,
on request, shall be given access to a record
kept under section 114, and may be given
access to a record kept under sections 115
and 116:
(a) the young
person to whom the record relates;
(b) the young
person's counsel, or any representative
of that counsel;
(c) the Attorney
General;
(d) the victim
of the offence or alleged offence to which
the record relates;
(e) the parents
of the young person, during the course of
any proceedings relating to the offence
or alleged offence to which the record relates
or during the term of any youth sentence
made in respect of the offence;
(f) any adult
assisting the young person under subsection
25(7), during the course of any proceedings
relating to the offence or alleged offence
to which the record relates or during the
term of any youth sentence made in respect
of the offence;
(g) any peace
officer for
(i) law enforcement
purposes, or
(ii) any purpose
related to the administration of the case
to which the record relates, during the
course of proceedings against the young
person or the term of the youth sentence;
(h) a judge,
court or review board, for any purpose relating
to proceedings against the young person,
or proceedings against the person after
he or she becomes an adult, in respect of
offences committed or alleged to have been
committed by that person;
(i) the provincial
director, or the director of the provincial
correctional facility for adults or the
penitentiary at which the young person is
serving a sentence;
(j) a person
participating in a conference or in the
administration of extrajudicial measures,
if required for the administration of the
case to which the record relates;
(k) a person
acting as ombudsman, privacy commissioner
or information commissioner, whatever his
or her official designation might be, who
in the course of his or her duties under
an Act of Parliament or the legislature
of a province is investigating a complaint
to which the record relates;
(l) a coroner
or a person acting as a child advocate,
whatever his or her official designation
might be, who is acting in the course of
his or her duties under an Act of Parliament
or the legislature of a province;
(m) a person
acting under the Firearms Act;
(n) a member
of a department or agency of a government
in Canada, or of an organization that is
an agent of, or under contract with, the
department or agency, who is
(i) acting in the
exercise of his or her duties under this
Act,
(ii) engaged in
the supervision or care of the young person,
whether as a young person or an adult, or
in an investigation related to the young
person under an Act of the legislature of
a province respecting child welfare,
(iii) considering
an application for conditional release or
pardon made by the young person, whether
as a young person or an adult,
(iv) administering
a prohibition order made under an Act of
Parliament or the legislature of a province,
or
(v) administering
a youth sentence, if the young person has
been committed to custody and is serving
the custody in a provincial correctional
facility for adults or a penitentiary;
(o) a person,
for the purpose of carrying out a criminal
record check required by the Government
of Canada or the government of a province
or a municipality for purposes of employment
or the performance of services, with or
without remuneration;
(p) an employee
or agent of the Government of Canada, for
statistical purposes under the
Statistics
Act
;
(q) an accused
or his or her counsel who swears an affidavit
to the effect that access to the record
is necessary to make a full answer and defence;
(r) a person
or a member of a class of persons designated
by order of the Governor in Council, or
the lieutenant governor in council of the
appropriate province, for a purpose and
to the extent specified in the order; and
(s) any person
or member of a class of persons that a youth
justice court judge considers has a valid
interest in the record, to the extent directed
by the judge, if the judge is satisfied
that access to the record is
(i) desirable in
the public interest for research or statistical
purposes, or
(ii) desirable in
the interest of the proper administration
of justice.
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|
Period of access
|
(2) The period of access
referred to in subsection (1) is
(a) if an extrajudicial
sanction is used to deal with the young
person, the period ending two years after
the young person consents to be subject
to the sanction in accordance with paragraph
10(2)(c);
(b) if the young
person is acquitted of the offence otherwise
than by reason of a verdict of not criminally
responsible on account of mental disorder,
the period ending two months after the expiry
of the time allowed for the taking of an
appeal or, if an appeal is taken, the period
ending three months after all proceedings
in respect of the appeal have been completed;
(c) if the charge
against the young person is dismissed for
any reason other than acquittal, the charge
is withdrawn, or the young person is found
guilty of the offence and a reprimand is
given, the period ending two months after
the dismissal, withdrawal, or finding of
guilt;
(d) if the charge
against the young person is stayed, with
no proceedings being taken against the young
person for a period of one year, at the
end of that period;
(e) if the young
person is found guilty of the offence and
the youth sentence is an absolute discharge,
the period ending one year after the young
person is found guilty;
(f) if the young
person is found guilty of the offence and
the youth sentence is a conditional discharge,
the period ending three years after the
young person is found guilty;
(g) subject
to paragraphs (i) and (j)
and subsection (9), if the young person
is found guilty of the offence and it is
a summary conviction offence, the period
ending three years after the youth sentence
imposed in respect of the offence has been
completed;
(h) subject
to paragraphs (i) and (j)
and subsection (9), if the young person
is found guilty of the offence and it is
an indictable offence, the period ending
five years after the youth sentence imposed
in respect of the offence has been completed;
(i) subject
to subsection (9), if, during the period
calculated in accordance with paragraph
(g) or (h), the young person
is found guilty of an offence punishable
on summary conviction committed when he
or she was a young person, the latest of
(i) the period calculated
in accordance with paragraph (g)
or (h), as the case may be, and
(ii) the period
ending three years after the youth sentence
imposed for that offence has been completed;
and
(j) subject
to subsection (9), if, during the period
calculated in accordance with paragraph
(g) or (h), the young person
is found guilty of an indictable offence
committed when he or she was a young person,
the period ending five years after the sentence
imposed for that indictable offence has
been completed.
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|
Prohibition orders
not included
|
(3) Prohibition orders
made under an Act of Parliament or the legislature
of a province, including any order made
under section 51, shall not be taken into
account in determining any period referred
to in subsection (2).
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|
Extrajudicial measures
|
(4) Access to a record
kept under section 115 or 116 in respect
of extrajudicial measures, other than extrajudicial
sanctions, used in respect of a young person
shall be given only to the following persons
for the following purposes:
(a) a peace
officer or the Attorney General, in order
to make a decision whether to again use
extrajudicial measures in respect of the
young person;
(b) a person
participating in a conference, in order
to decide on the appropriate extrajudicial
measure;
(c) a peace
officer, the Attorney General or a person
participating in a conference, if access
is required for the administration of the
case to which the record relates; and
(d) a peace
officer for the purpose of investigating
an offence.
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|
Exception
|
(5) When a youth justice
court has withheld all or part of a report
from any person under subsection 34(9) or
(10) (nondisclosure of medical or psychological
report) or 40(7) (nondisclosure of pre-sentence
report), that person shall not be given
access under subsection (1) to that report
or part.
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|
Records of assessments
or forensic DNA analysis
|
(6) Access to a report
made under section 34 (medical and psychological
reports) or a record of the results of forensic
DNA analysis of a bodily substance taken
from a young person in execution of a warrant
issued under section 487.05 of the
Criminal
Code
may be given only under paragraphs
(1)(a) to (c), (e)
to (h) and (q) and subparagraph
(1)(s)(ii).
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|
Introduction into
evidence
|
(7) Nothing in paragraph
(1)(h) or (q) authorizes the
introduction into evidence of any part of
a record that would not otherwise be admissible
in evidence.
|
|
Disclosures for
research or statistical purposes
|
(8) When access to
a record is given to a person under paragraph
(1)(p) or subparagraph (1)(s)(i),
the person may subsequently disclose information
contained in the record, but shall not disclose
the information in any form that would reasonably
be expected to identify the young person
to whom it relates.
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|
Application of usual
rules
|
(9) If, during the
period of access to a record under any of
paragraphs (2)(g) to (j),
the young person is convicted of an offence
committed when he or she is an adult,
(a) section
82 (effect of absolute discharge or termination
of youth sentence) does not apply to the
young person in respect of the offence for
which the record is kept under sections
114 to 116;
(b) this Part
no longer applies to the record and the
record shall be dealt with as a record of
an adult; and
(c) for the
purposes of the Criminal Records Act,
the finding of guilt in respect of the offence
for which the record is kept is deemed to
be a conviction.
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|
Records of offences
that result in a prohibition order
|
(10) Despite anything
in this Act, when a young person is found
guilty of an offence that results in a prohibition
order being made, and the order is still
in force at the end of the applicable period
for which access to a record kept in respect
of the order may be given under subsection
(2),
(a) the record
kept by the Royal Canadian Mounted Police
pursuant to subsection 115(3) may be disclosed
only to establish the existence of the order
for purposes of law enforcement; and
(b) the record
referred to in section 114 that is kept
by the youth justice court may be disclosed
only to establish the existence of the order
in any offence involving a breach of the
order.
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|
Access to R.C.M.P.
records
|
120. (1)
The following persons may, during the period
set out in subsection (3), be given access
to a record kept under subsection 115(3)
in respect of an offence set out in the
schedule:
(a) the young
person to whom the record relates;
(b) the young
person's counsel, or any representative
of that counsel;
(c) an employee
or agent of the Government of Canada, for
statistical purposes under the
Statistics
Act
;
(d) any person
or member of a class of persons that a youth
justice court judge considers has a valid
interest in the record, to the extent directed
by the judge, if the judge is satisfied
that access is desirable in the public interest
for research or statistical purposes;
(e) the Attorney
General or a peace officer, when the young
person is or has been charged with another
offence set out in the schedule or the same
offence more than once, for the purpose
of investigating any offence that the young
person is suspected of having committed,
or in respect of which the young person
has been arrested or charged, whether as
a young person or as an adult;
(f) the Attorney
General or a peace officer to establish
the existence of an order in any offence
involving a breach of the order; and
(g) any person
for the purposes of the Firearms Act.
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|
Access for identification
purposes
|
(2) During the period
set out in subsection (3), access to the
portion of a record kept under subsection
115(3) that contains the name, date of birth
and last known address of the young person
to whom the fingerprints belong, may be
given to a person for identification purposes
if a fingerprint identified as that of the
young person is found during the investigation
of an offence or during an attempt to identify
a deceased person or a person suffering
from amnesia.
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|
Period of access
|
(3) For the purposes
of subsections (1) and (2), the period of
access to a record kept under subsection
115(3) in respect of an offence is the following:
(a) if the offence
is an indictable offence, other than a presumptive
offence, the period starting at the end
of the applicable period set out in paragraphs
119(2)(h) to (j) and ending
five years later; and
(b) if the offence
is an offence set out in paragraph (a)
of the definition "presumptive offence"
in subsection 2(1) or an offence set out
in paragraph (b) of that definition
for which the Attorney General has given
notice under subsection 64(2) (intention
to seek adult sentence), the period starting
at the end of the applicable period set
out in paragraphs 119(2)(h) to (j)
and continuing indefinitely.
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|
Subsequent offences
as young person
|
(4) If a young person
was found guilty of an offence set out in
the schedule is, during the period of access
to a record under subsection (3), found
guilty of an additional offence set out
in the schedule, committed when he or she
was a young person, access to the record
may be given to the following additional
persons:
(a) a parent
of the young person or any adult assisting
the young person under subsection 25(7);
(b) a judge,
court or review board, for a purpose relating
to proceedings against the young person
under this Act or any other Act of Parliament
in respect of offences committed or alleged
to have been committed by the young person,
whether as a young person or as an adult;
or
(c) a member
of a department or agency of a government
in Canada, or of an organization that is
an agent of, or is under contract with,
the department or agency, who is
(i) preparing a
report in respect of the young person under
this Act or for the purpose of assisting
a court in sentencing the young person after
the young person becomes an adult,
(ii) engaged in
the supervision or care of the young person,
whether as a young person or as an adult,
or in the administration of a sentence in
respect of the young person, whether as
a young person or as an adult, or
(iii) considering
an application for conditional release or
pardon made by the young person after the
young person becomes an adult.
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|
Disclosure for research
or statistical purposes
|
(5) A person who is
given access to a record under paragraph
(1)(c) or (d) may subsequently
disclose information contained in the record,
but shall not disclose the information in
any form that would reasonably be expected
to identify the young person to whom it
relates.
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|
Subsequent offences
as adult
|
(6) If, during the
period of access to a record under subsection
(3), the young person is convicted of an
additional offence set out in the schedule,
committed when he or she was an adult,
(a) this Part
no longer applies to the record and the
record shall be dealt with as a record of
an adult and may be included on the automated
criminal conviction records retrieval system
maintained by the Royal Canadian Mounted
Police; and
(b) for the
purposes of the Criminal Records Act,
the finding of guilt in respect of the offence
for which the record is kept is deemed to
be a conviction.
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|
Deemed election
|
121. For
the purposes of sections 119 and 120, if
no election is made in respect of an offence
that may be prosecuted by indictment or
proceeded with by way of summary conviction,
the Attorney General is deemed to have elected
to proceed with the offence as an offence
punishable on summary conviction.
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|
Disclosure of
information and copies of record
|
122. A
person who is required or authorized to
be given access to a record under section
119, 120, 123 or 124 may be given any information
contained in the record and may be given
a copy of any part of the record.
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|
Where records
may be made available
|
123. (1)
A youth justice court judge may, on application
by a person after the end of the applicable
period set out in subsection 119(2), order
that the person be given access to all or
part of a record kept under sections 114
to 116 or that a copy of the record or part
be given to that person,
(a) if the youth
justice court judge is satisfied that
(i) the person has
a valid and substantial interest in the
record or part,
(ii) it is necessary
for access to be given to the record or
part in the interest of the proper administration
of justice, and
(iii) disclosure
of the record or part or the information
in it is not prohibited under any other
Act of Parliament or the legislature of
a province; or
(b) if the youth
court judge is satisfied that access to
the record or part is desirable in the public
interest for research or statistical purposes.
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|
Restriction for
paragraph (1)(a)
|
(2) Paragraph (1)(a)
applies in respect of a record relating
to a particular young person or to a record
relating to a class of young persons only
if the identity of young persons in the
class at the time of the making of the application
referred to in that paragraph cannot reasonably
be ascertained and the disclosure of the
record is necessary for the purpose of investigating
any offence that a person is suspected on
reasonable grounds of having committed against
a young person while the young person is,
or was, serving a sentence.
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|
Notice
|
(3) Subject to subsection
(4), an application for an order under paragraph
(1)(a) in respect of a record shall
not be heard unless the person who makes
the application has given the young person
to whom the record relates and the person
or body that has possession of the record
at least five days notice in writing of
the application, and the young person and
the person or body that has possession have
had a reasonable opportunity to be heard.
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|
Where notice not
required
|
(4) A youth justice
court judge may waive the requirement in
subsection (3) to give notice to a young
person when the judge is of the opinion
that
(a) to insist
on the giving of the notice would frustrate
the application; or
(b) reasonable
efforts have not been successful in finding
the young person.
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|
Use of record
|
(5) In any order under
subsection (1), the youth justice court
judge shall set out the purposes for which
the record may be used.
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|
Disclosure for research
or statistical purposes
|
(6) When access to
a record is given to any person under paragraph
(1)(b), that person may subsequently
disclose information contained in the record,
but shall not disclose the information in
any form that would reasonably be expected
to identify the young person to whom it
relates.
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|
Access to record
by young person
|
124. A
young person to whom a record relates and
his or her counsel may have access to the
record at any time.
|
|
Disclosure of Information
in a Record
|
|
Disclosure by
peace officer during investigation
|
125. (1)
A peace officer may disclose to any person
any information in a record kept under section
114 (court records) or 115 (police records)
that it is necessary to disclose in the
conduct of the investigation of an offence.
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|
Disclosure by Attorney
General
|
(2) The Attorney General
may, in the course of a proceeding under
this Act or any other Act of Parliament,
disclose the following information in a
record kept under section 114 (court reports)
or 115 (police records):
(a) to a person
who is a co-accused with the young person
in respect of the offence for which the
record is kept, any information contained
in the record; and
(b) to an accused
in a proceeding, if the record is in respect
of a witness in the proceeding, information
that identifies the witness as a young person
who has been dealt with under this Act.
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|
Information that
may be disclosed to a foreign state
|
(3) The Attorney General
or a peace officer may disclose to the Minister
of Justice of Canada information in a record
that is kept under section 114 (court records)
or 115 (police records) to the extent that
it is necessary to deal with a request to
or by a foreign state under the
Mutual
Legal Assistance in Criminal Matters Act
,
or for the purposes of any extradition matter
under the Extradition Act. The Minister
of Justice of Canada may disclose the information
to the foreign state in respect of which
the request was made, or to which the extradition
matter relates, as the case may be.
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|
Disclosure to insurance
company
|
(4) A peace officer
may disclose to an insurance company information
in a record that is kept under section 114
(court records) or 115 (police records)
for the purpose of investigating a claim
arising out of an offence committed or alleged
to have been committed by the young person
to whom the record relates.
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|
Preparation of reports
|
(5) The provincial
director or a youth worker may disclose
information contained in a record if the
disclosure is necessary for procuring information
that relates to the preparation of a report
required by this Act.
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|
Schools and others
|
(6) The provincial
director, a youth worker, the Attorney General,
a peace officer or any other person engaged
in the provision of services to young persons
may disclose to any professional or other
person engaged in the supervision or care
of a young person -- including a representative
of any school board or school or any other
educational or training institution -- any
information contained in a record kept under
sections 114 to 116 if the disclosure is
necessary
(a) to ensure
compliance by the young person with an authorization
under section 91 or an order of the youth
justice court;
(b) to ensure
the safety of staff, students or other persons;
or
(c) to facilitate
the rehabilitation of the young person.
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|
Information to be
kept separate
|
(7) A person to whom
information is disclosed under subsection
(6) shall
(a) keep the
information separate from any other record
of the young person to whom the information
relates;
(b) ensure that
no other person has access to the information
except if authorized under this Act, or
if necessary for the purposes of subsection
(6); and
(c) destroy
their copy of the record when the information
is no longer required for the purpose for
which it was disclosed.
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|
Time limit
|
(8) No information
may be disclosed under this section after
the end of the applicable period set out
in subsection 119(2) (period of access to
records).
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|
Records in the
custody, etc., of archivists
|
126. When
records originally kept under sections 114
to 116 are under the custody or control
of the National Archivist of Canada or the
archivist for any province, that person
may disclose any information contained in
the records to any other person if
(a) a youth
justice court judge is satisfied that the
disclosure is desirable in the public interest
for research or statistical purposes; and
(b) the person
to whom the information is disclosed undertakes
not to disclose the information in any form
that could reasonably be expected to identify
the young person to whom it relates.
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|
Disclosure with
court order
|
127. (1)
The youth justice court may, on the application
of the provincial director, the Attorney
General or a peace officer, make an order
permitting the applicant to disclose to
the person or persons specified by the court
any information about a young person that
is specified, if the court is satisfied
that the disclosure is necessary, having
regard to the following circumstances:
(a) the young
person has been found guilty of an offence
involving serious personal injury;
(b) the young
person poses a risk of serious harm to persons;
and
(c) the disclosure
of the information is relevant to the avoidance
of that risk.
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|
Opportunity to be
heard
|
(2) Subject to subsection
(3), before making an order under subsection
(1), the youth justice court shall give
the young person, a parent of the young
person and the Attorney General an opportunity
to be heard.
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|
Ex parte
application
|
(3) An application
under subsection (1) may be made ex parte
by the Attorney General where the youth
justice court is satisfied that reasonable
efforts have been made to locate the young
person and that those efforts have not been
successful.
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|
Time limit
|
(4) No information
may be disclosed under subsection (1) after
the end of the applicable period set out
in subsection 119(2) (period of access to
records).
|
|
Disposition or
Destruction of Records and Prohibition on
Use and Disclosure
|
|
Effect of end
of access periods
|
128. (1)
Subject to sections 123, 124 and 126, after
the end of the applicable period set out
in section 119 or 120 no record kept under
sections 114 to 116 may be used for any
purpose that would identify the young person
to whom the record relates as a young person
dealt with under this Act or the
Young
Offenders Act
, chapter Y-1 of the Revised
Statutes of Canada, 1985.
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|
Disposal of records
|
(2) Subject to paragraph
125(7)(c), any record kept under
sections 114 to 116, other than a record
kept under subsection 115(3), may, in the
discretion of the person or body keeping
the record, be destroyed or transmitted
to the National Archivist of Canada or the
archivist for any province, at any time
before or after the end of the applicable
period set out in section 119.
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|
Disposal of R.C.M.P.
records
|
(3) All records kept
under subsection 115(3) shall be destroyed
or, if the National Archivist of Canada
requires it, transmitted to the National
Archivist of Canada, at the end of the applicable
period set out in section 119 or 120.
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|
Purging CPIC
|
(4) The Commissioner
of the Royal Canadian Mounted Police shall
remove a record from the automated criminal
conviction records retrieval system maintained
by the Royal Canadian Mounted Police at
the end of the applicable period referred
to in section 119; however, information
relating to a prohibition order made under
an Act of Parliament or the legislature
of a province shall be removed only at the
end of the period for which the order is
in force.
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|
Exception
|
(5) Despite subsections
(1), (2) and (4), an entry that is contained
in a system maintained by the Royal Canadian
Mounted Police to match crime scene information
and that relates to an offence committed
or alleged to have been committed by a young
person shall be dealt with in the same manner
as information that relates to an offence
committed by an adult for which a pardon
granted under the Criminal Records Act
is in effect.
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|
Authority to inspect
|
(6) The National Archivist
of Canada may, at any time, inspect records
kept under sections 114 to 116 that are
under the control of a government institution
as defined in section 2 of the
National
Archives of Canada Act
, and the archivist
for a province may at any time inspect any
records kept under those sections that the
archivist is authorized to inspect under
any Act of the legislature of the province.
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|
Definition of "destroy"
|
(7) For the purposes
of subsections (2) and (3), "destroy", in
respect of a record, means
(a) to shred,
burn or otherwise physically destroy the
record, in the case of a record other than
a record in electronic form; and
(b) to delete,
write over or otherwise render the record
inaccessible, in the case of a record in
electronic form.
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|
No subsequent
disclosure
|
129. No
person who is given access to a record or
to whom information is disclosed under this
Act shall disclose that information to any
other person unless the disclosure is authorized
under this Act.
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|
PART 7
GENERAL PROVISIONS
|
|
Disqualification
of Judge
|
|
Disqualification
of judge
|
130. (1)
Subject to subsection (2), a youth justice
court judge who, prior to an adjudication
in respect of a young person charged with
an offence, examines a pre-sentence report
made in respect of the young person in connection
with that offence or has, after a guilty
plea or a finding of guilt, heard submissions
as to sentence and then there has been a
change of plea, shall not in any capacity
conduct or continue the trial of the young
person for the offence and shall transfer
the case to another judge to be dealt with
according to law.
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|
Exception
|
(2) A youth justice
court judge may, in the circumstances referred
to in subsection (1), with the consent of
the young person and the prosecutor, conduct
or continue the trial of the young person
if the judge is satisfied that he or she
has not been predisposed by a guilty plea
or finding of guilt, or by information contained
in the pre-sentence report or submissions
as to sentence.
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|
Substitution of
Judge
|
|
Powers of substitute
youth justice court judge
|
131. (1)
A youth justice court judge who acts in
the place of another youth justice court
judge under subsection 669.2(1) (continuation
of proceedings) of the Criminal Code
shall
(a) if an adjudication
has been made, proceed to sentence the young
person or make the order that, in the circumstances,
is authorized by law; or
(b) if no adjudication
has been made, recommence the trial as if
no evidence had been taken.
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|
Transcript of evidence
already given
|
(2) A youth justice
court judge who recommences a trial under
paragraph (1)(b) may, if the parties
consent, admit into evidence a transcript
of any evidence already given in the case.
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|
Exclusion from
Hearing
|
|
Exclusion from
hearing
|
132. (1)
Subject to subsection (2), a court or justice
before whom proceedings are carried out
under this Act may exclude any person from
all or part of the proceedings if the court
or justice considers that the person's presence
is unnecessary to the conduct of the proceedings
and the court or justice is of the opinion
that
(a) any evidence
or information presented to the court or
justice would be seriously injurious or
seriously prejudicial to
(i) the young person
who is being dealt with in the proceedings,
(ii) a child or
young person who is a witness in the proceedings,
or
(iii) a child or
young person who is aggrieved by or the
victim of the offence charged in the proceedings;
or
(b) it would
be in the interest of public morals, the
maintenance of order or the proper administration
of justice to exclude any or all members
of the public from the court room.
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Exception
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(2) Subject to section
650 (accused to be present) of the
Criminal
Code
and except if it is necessary for
the purposes of subsection 34(9) (nondisclosure
of medical or psychological report) of this
Act, a court or justice may not, under subsection
(1), exclude from proceedings under this
Act
(a) the prosecutor;
(b) the young
person who is being dealt with in the proceedings,
the counsel or a parent of the young person
or any adult assisting the young person
under subsection 25(7);
(c) the provincial
director or his or her agent; or
(d) the youth
worker to whom the young person's case has
been assigned.
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Exclusion after
adjudication or during review
|
(3) A youth justice
court, after it has found a young person
guilty of an offence, or a youth justice
court or a review board, during a review,
may, in its discretion, exclude from the
court or from a hearing of the review board
any person other than the following, when
it is being presented with information the
knowledge of which might, in its opinion,
be seriously injurious or seriously prejudicial
to the young person:
(a) the young
person or his or her counsel;
(b) the provincial
director or his or her agent;
(c) the youth
worker to whom the young person's case has
been assigned; and
(d) the Attorney
General.
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Exception
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(4) The exception set
out in paragraph (3)(a) is subject
to subsection 34(9) (nondisclosure of medical
or psychological report) of this Act and
section 650 (accused to be present) of the
Criminal Code.
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Transfer of Charges
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Transfer of charges
|
133. Despite
subsections 478(1) and (3) of the
Criminal
Code
, a young person charged with an
offence that is alleged to have been committed
in one province may, if the Attorney General
of the province consents, appear before
a youth justice court of any other province
and
(a) if the young
person pleads guilty to that offence and
the youth justice court is satisfied that
the facts support the charge, the court
shall find the young person guilty of the
offence alleged in the information or indictment;
and
(b) if the young
person pleads not guilty to that offence,
or pleads guilty but the court is not satisfied
that the facts support the charge, the young
person shall, if he or she was detained
in custody prior to the appearance, be returned
to custody and dealt with according to law.
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Forfeiture of Recognizances
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Applications for
forfeiture of recognizances
|
134. Applications
for the forfeiture of recognizances of young
persons shall be made to the youth justice
court.
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Proceedings in
case of default
|
135. (1)
When a recognizance binding a young person
has been endorsed with a certificate under
subsection 770(1) of the Criminal Code,
a youth justice court judge shall
(a) on the request
of the Attorney General, fix a time and
place for the hearing of an application
for the forfeiture of the recognizance;
and
(b) after fixing
a time and place for the hearing, cause
to be sent by confirmed delivery service,
not less than ten days before the time so
fixed, to each principal and surety named
in the recognizance, directed to his or
her latest known address, a notice requiring
him or her to appear at the time and place
fixed by the judge to show cause why the
recognizance should not be forfeited.
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Order for forfeiture
of recognizance
|
(2) When subsection
(1) is complied with, the youth justice
court judge may, after giving the parties
an opportunity to be heard, in his or her
discretion grant or refuse the application
and make any order with respect to the forfeiture
of the recognizance that he or she considers
proper.
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Judgment debtors
of the Crown
|
(3) If, under subsection
(2), a youth justice court judge orders
forfeiture of a recognizance, the principal
and his or her sureties become judgment
debtors of the Crown, each in the amount
that the judge orders him or her to pay.
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Order may be filed
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(4) An order made under
subsection (2) may be filed with the clerk
of the superior court or, in the province
of Quebec, the prothonotary and, if an order
is filed, the clerk or the prothonotary
shall issue a writ of fieri facias
in Form 34 set out in the Criminal Code
and deliver it to the sheriff of each of
the territorial divisions in which any of
the principal and his or her sureties resides,
carries on business or has property.
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If a deposit has
been made
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(5) If a deposit has
been made by a person against whom an order
for forfeiture of a recognizance has been
made, no writ of fieri facias shall
issue, but the amount of the deposit shall
be transferred by the person who has custody
of it to the person who is entitled by law
to receive it.
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Subsections 770(2)
and (4) of Criminal Code do not apply
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(6) Subsections 770(2)
(transmission of recognizance) and (4) (transmission
of deposit) of the Criminal Code
do not apply in respect of proceedings under
this Act.
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Sections 772 and
773 of Criminal Code apply
|
(7) Sections 772 (levy
under writ) and 773 (committal when writ
not satisfied) of the Criminal Code
apply in respect of writs of fieri facias
issued under this section as if they were
issued under section 771 (proceedings in
case of default) of that Act.
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Offences and Punishment
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Inducing a young
person, etc.
|
136. (1)
Every person who
(a) induces
or assists a young person to leave unlawfully
a place of custody or other place in which
the young person has been placed in accordance
with a youth sentence or a disposition imposed
under the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
(b) unlawfully
removes a young person from a place referred
to in paragraph (a),
(c) knowingly
harbours or conceals a young person who
has unlawfully left a place referred to
in paragraph (a),
(d) wilfully
induces or assists a young person to breach
or disobey a term or condition of a youth
sentence or other order of the youth justice
court, or a term or condition of a disposition
or other order under the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985, or
(e) wilfully
prevents or interferes with the performance
by a young person of a term or condition
of a youth sentence or other order of the
youth justice court, or a term or condition
of a disposition or other order under the
Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985,
is guilty of an
indictable offence and liable to imprisonment
for a term not exceeding two years or is
guilty of an offence punishable on summary
conviction.
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Absolute jurisdiction
of provincial court judge
|
(2) The jurisdiction
of a provincial court judge to try an adult
charged with an indictable offence under
this section is absolute and does not depend
on the consent of the accused.
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Failure to comply
with sentence or disposition
|
137. Every
person who is subject to a youth sentence
imposed under any of paragraphs 42(2)(c)
to (m) or (s) of this Act,
to a victim fine surcharge ordered under
subsection 53(2) of this Act or to a disposition
made under any of paragraphs 20(1)(a.1)
to (g), (j) or (l)
of the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
and who wilfully fails or refuses to comply
with that sentence, surcharge or disposition
is guilty of an offence punishable on summary
conviction.
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Offences
|
138. (1)
Every person who contravenes subsection
110(1) (identity of offender not to be published),
111(1) (identity of victim or witness not
to be published), 118(1) (no access to records
unless authorized) or 128(3) (disposal of
R.C.M.P. records) or section 129 (no subsequent
disclosure) of this Act, or subsection 38(1)
(identity not to be published), (1.12) (no
subsequent disclosure), (1.14) (no subsequent
disclosure by school) or (1.15) (information
to be kept separate), 45(2) (destruction
of records) or 46(1) (prohibition against
disclosure) of the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985,
(a) is guilty
of an indictable offence and liable to imprisonment
for a term not exceeding two years; or
(b) is guilty
of an offence punishable on summary conviction.
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Provincial court
judge has absolute jurisdiction on indictment
|
(2) The jurisdiction
of a provincial court judge to try an adult
charged with an offence under paragraph
(1)(a) is absolute and does not depend
on the consent of the accused.
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Offence and punishment
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139. (1)
Every person who wilfully fails to comply
with section 30 (designated place of temporary
detention), or with an undertaking entered
into under subsection 31(3) (condition of
placement),
(a) is guilty
of an indictable offence and liable to imprisonment
for a term not exceeding two years; or
(b) is guilty
of an offence punishable on summary conviction.
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Offence and punishment
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(2) Every person who
wilfully fails to comply with section 7
(designated place of temporary detention)
of the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
or with an undertaking entered into under
subsection 7.1(2) (condition of placement)
of that Act is guilty of an offence punishable
on summary conviction.
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Punishment
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(3) Any person who
uses or authorizes the use of an application
form in contravention of subsection 82(3)
(application for employment) is guilty of
an offence punishable on summary conviction.
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Application of
Criminal Code
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Application of
Criminal Code
|
140. Except
to the extent that it is inconsistent with
or excluded by this Act, the provisions
of the Criminal Code apply, with
any modifications that the circumstances
require, in respect of offences alleged
to have been committed by young persons.
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Sections of Criminal Code applicable
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141. (1)
Except to the extent that they are inconsistent
with or excluded by this Act, section 16
(defence of mental disorder) and Part XX.1
(mental disorder) of the Criminal Code,
except sections 672.65 (capping of offences)
and 672.66 (hearing application procedures),
apply, with any modifications that the circumstances
require, in respect of proceedings under
this Act in relation to offences alleged
to have been committed by young persons.
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Notice and copies
to counsel and parents
|
(2) For the purposes
of subsection (1),
(a) wherever
in Part XX.1 (mental disorder) of the Criminal Code a reference is made to
a copy to be sent or otherwise given to
an accused or a party to the proceedings,
the reference shall be read as including
a reference to a copy to be sent or otherwise
given to
(i) any counsel
representing the young person,
(ii) a parent of
the young person who is in attendance at
the proceedings against the young person,
and
(iii) a parent of
the young person not in attendance at the
proceedings who is, in the opinion of the
youth justice court or Review Board, taking
an active interest in the proceedings; and
(b) wherever
in Part XX.1 (mental disorder) of the Criminal Code a reference is made to
notice to be given to an accused or a party
to proceedings, the reference shall be read
as including a reference to notice to be
given to a parent of the young person and
any counsel representing the young person.
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Proceedings not
invalid
|
(3) Subject to subsection
(4), failure to give a notice referred to
in paragraph (2)(b) to a parent of
a young person does not affect the validity
of proceedings under this Act.
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Exception
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(4) Failure to give
a notice referred to in paragraph (2)(b)
to a parent of a young person in any case
renders invalid any subsequent proceedings
under this Act relating to the case unless
(a) a parent
of the young person attends at the court
or Review Board with the young person; or
(b) a youth
justice court judge or Review Board before
whom proceedings are held against the young
person
(i) adjourns the
proceedings and orders that the notice be
given in the manner and to the persons that
the judge or Review Board directs, or
(ii) dispenses with
the notice if the youth justice court or
Review Board is of the opinion that, having
regard to the circumstances, the notice
may be dispensed with.
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No hospital order
assessments
|
(5) A youth justice
court may not make an order under section
672.11 (assessment order) of the
Criminal
Code
in respect of a young person for
the purpose of assisting in the determination
of a matter mentioned in paragraph (e)
of that section.
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Considerations of
court or Review Board making a disposition
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(6) Before making or
reviewing a disposition in respect of a
young person under Part XX.1 (mental disorder)
of the Criminal Code, a youth justice
court or Review Board shall consider the
age and special needs of the young person
and any representations or submissions made
by a parent of the young person.
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Cap applicable to
young persons
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(7) Subject to subsection
(9), for the purpose of applying subsection
672.64(3) (cap for various offences) of
the Criminal Code to proceedings
under this Act in relation to an offence
alleged to have been committed by a young
person, the applicable cap shall be the
maximum period during which the young person
would be subject to a youth sentence by
the youth justice court if found guilty
of the offence.
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Application to increase
cap of unfit young person subject to adult
sentence
|
(8) If a young person
is charged with a presumptive offence or
notice has been given under subsection 64(2)
(intention to seek adult sentence), and
the young person is found unfit to stand
trial, the Attorney General may apply to
the court to increase the cap that will
apply to the young person.
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Consideration of
youth justice court for increase in cap
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(9) The youth justice
court, after giving the Attorney General
and the counsel and a parent of the young
person in respect of whom subsection (8)
applies an opportunity to be heard, shall
take into consideration
(a) the seriousness
and circumstances of the alleged offence,
(b) the age,
maturity, character and background of the
young person and any previous criminal record,
(c) the likelihood
that the young person will cause significant
harm to any person if released on expiry
of the cap that applies to the young person
under subsection (7), and
(d) the respective
caps that would apply to the young person
under this Act and under the
Criminal
Code
.
If the court is
satisfied that it would make an order under
subsection 64(5) (application for adult
sentence unopposed) or 70(2) (no application
by young person to avoid adult sentence)
or paragraph 72(1)(b) (imposition
of adult sentence) if the young person were
fit to stand trial, it shall apply to the
young person the cap that would apply to
an adult for the same offence.
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Prima facie
case to be made every year
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(10) For the purpose
of applying subsection 672.33(1) (fitness
to stand trial) of the Criminal Code
to proceedings under this Act in relation
to an offence alleged to have been committed
by a young person, wherever in that subsection
a reference is made to two years, there
shall be substituted a reference to one
year.
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Designation of hospitals
for young persons
|
(11) A reference in
Part XX.1 (mental disorder) of the
Criminal
Code
to a hospital in a province shall
be construed as a reference to a hospital
designated by the Minister of Health for
the province for the custody, treatment
or assessment of young persons.
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Definition of "Review
Board"
|
(12) In this section,
"Review Board" has the meaning assigned
by section 672.1 of the Criminal Code.
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Part XXVII and
summary conviction trial provisions of
Criminal Code to apply
|
142. (1)
Subject to this section and except to the
extent that they are inconsistent with this
Act, the provisions of Part XXVII (summary
conviction offences) of the
Criminal
Code
, and any other provisions of that
Act that apply in respect of summary conviction
offences and relate to trial proceedings,
apply to proceedings under this Act
(a) in respect
of an order under section 810 (recognizance
-- fear of injury or damage), 810.01 (recognizance
-- fear of criminal organization offence)
or 810.2 (recognizance -- fear of serious
personal injury offence) of that Act or
an offence under section 811 (breach of
recognizance) of that Act;
(b) in respect
of a summary conviction offence; and
(c) in respect
of an indictable offence as if it were defined
in the enactment creating it as a summary
conviction offence.
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Indictable offences
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(2) For greater certainty
and despite subsection (1) or any other
provision of this Act, an indictable offence
committed by a young person is, for the
purposes of this Act or any other Act of
Parliament, an indictable offence.
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Attendance of young
person
|
(3) Section 650 of
the Criminal Code applies in respect
of proceedings under this Act, whether the
proceedings relate to an indictable offence
or an offence punishable on summary conviction.
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Limitation period
|
(4) In proceedings
under this Act, subsection 786(2) of the
Criminal Code does not apply in respect
of an indictable offence.
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Costs
|
(5) Section 809 of
the Criminal Code does not apply
in respect of proceedings under this Act.
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Procedure
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Counts charged
in information
|
143. Indictable
offences and offences punishable on summary
conviction may under this Act be charged
in the same information or indictment and
tried jointly.
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Issue of subpoena
|
144. (1)
If a person is required to attend to give
evidence before a youth justice court, the
subpoena directed to that person may be
issued by a youth justice court judge, whether
or not the person whose attendance is required
is within the same province as the youth
justice court.
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Service of subpoena
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(2) A subpoena issued
by a youth justice court and directed to
a person who is not within the same province
as the youth justice court shall be served
personally on the person to whom it is directed.
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Warrant
|
145. A
warrant issued by a youth justice court
may be executed anywhere in Canada.
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Evidence
|
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General law on
admissibility of statements to apply
|
146. (1)
Subject to this section, the law relating
to the admissibility of statements made
by persons accused of committing offences
applies in respect of young persons.
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When statements
are admissible
|
(2) No oral or written
statement made by a young person who is
less than eighteen years old, to a peace
officer or to any other person who is, in
law, a person in authority, on the arrest
or detention of the young person or in circumstances
where the peace officer or other person
has reasonable grounds for believing that
the young person has committed an offence
is admissible against the young person unless
(a) the statement
was voluntary;
(b) the person
to whom the statement was made has, before
the statement was made, clearly explained
to the young person, in language appropriate
to his or her age and understanding, that
(i) the young person
is under no obligation to make a statement,
(ii) any statement
made by the young person may be used as
evidence in proceedings against him or her,
(iii) the young
person has the right to consult counsel
and a parent or other person in accordance
with paragraph (c), and
(iv) any statement
made by the young person is required to
be made in the presence of counsel and any
other person consulted in accordance with
paragraph (c), if any, unless the
young person desires otherwise;
(c) the young
person has, before the statement was made,
been given a reasonable opportunity to consult
(i) with counsel,
and
(ii) with a parent
or, in the absence of a parent, an adult
relative or, in the absence of a parent
and an adult relative, any other appropriate
adult chosen by the young person, as long
as that person is not a co-accused, or under
investigation, in respect of the same offence;
and
(d) if the young
person consults a person in accordance with
paragraph (c), the young person has
been given a reasonable opportunity to make
the statement in the presence of that person.
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Exception in certain
cases for oral statements
|
(3) The requirements
set out in paragraphs (2)(b) to (d)
do not apply in respect of oral statements
if they are made spontaneously by the young
person to a peace officer or other person
in authority before that person has had
a reasonable opportunity to comply with
those requirements.
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Waiver of right
to consult
|
(4) A young person
may waive the rights under paragraph (2)(c)
or (d) but any such waiver
(a) must be
recorded on video tape or audio tape; or
(b) must be
in writing and contain a statement signed
by the young person that he or she has been
informed of the right being waived.
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Waiver of right
to consult
|
(5) When a waiver of
rights under paragraph (2)(c) or
(d) is not made in accordance with
subsection (4) owing to a technical irregularity,
the youth justice court may determine that
the waiver is valid if it is satisfied that
the young person was informed of his or
her rights, and voluntarily waived them.
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Admissibility of
statements
|
(6) When there has
been a technical irregularity in complying
with paragraphs (2)(b) to (d),
the youth justice court may admit into evidence
a statement referred to in subsection (2),
if satisfied that the admission of the statement
would not bring into disrepute the principle
that young persons are entitled to enhanced
procedural protection to ensure that they
are treated fairly and their rights are
protected.
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Statements made
under duress are inadmissible
|
(7) A youth justice
court judge may rule inadmissible in any
proceedings under this Act a statement made
by the young person in respect of whom the
proceedings are taken if the young person
satisfies the judge that the statement was
made under duress imposed by any person
who is not, in law, a person in authority.
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Misrepresentation
of age
|
(8) A youth justice
court judge may in any proceedings under
this Act rule admissible any statement or
waiver by a young person if, at the time
of the making of the statement or waiver,
(a) the young
person held himself or herself to be eighteen
years old or older;
(b) the person
to whom the statement or waiver was made
conducted reasonable inquiries as to the
age of the young person and had reasonable
grounds for believing that the young person
was eighteen years old or older; and
(c) in all other
circumstances the statement or waiver would
otherwise be admissible.
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Parent, etc., not
a person in authority
|
(9) For the purpose
of this section, a person consulted under
paragraph (2)(c) is, in the absence
of evidence to the contrary, deemed not
to be a person in authority.
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Statements not
admissible against young person
|
147. (1)
Subject to subsection (2), if a young person
is assessed in accordance with an order
made under subsection 34(1) (medical or
psychological assessment), no statement
or reference to a statement made by the
young person during the course and for the
purposes of the assessment to the person
who conducts the assessment or to anyone
acting under that person's direction is
admissible in evidence, without the consent
of the young person, in any proceeding before
a court, tribunal, body or person with jurisdiction
to compel the production of evidence.
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Exceptions
|
(2) A statement referred
to in subsection (1) is admissible in evidence
for the purposes of
(a) making a
decision on an application heard under section
71 (hearing -- adult sentences);
(b) determining
whether the young person is unfit to stand
trial;
(c) determining
whether the balance of the mind of the young
person was disturbed at the time of commission
of the alleged offence, if the young person
is a female person charged with an offence
arising out of the death of her newly-born
child;
(d) making or
reviewing a sentence in respect of the young
person;
(e) determining
whether the young person was, at the time
of the commission of an alleged offence,
suffering from automatism or a mental disorder
so as to be exempt from criminal responsibility
by virtue of subsection 16(1) of the Criminal Code, if the accused puts his
or her mental capacity for criminal intent
into issue, or if the prosecutor raises
the issue after verdict;
(f) challenging
the credibility of a young person in any
proceeding if the testimony of the young
person is inconsistent in a material particular
with a statement referred to in subsection
(1) that the young person made previously;
(g) establishing
the perjury of a young person who is charged
with perjury in respect of a statement made
in any proceeding;
(h) deciding
an application for an order under subsection
104(1) (continuation of custody);
(i) setting
the conditions under subsection 105(1) (conditional
supervision);
(j) conducting
a review under subsection 109(1) (review
of decision); or
(k) deciding
an application for a disclosure order under
subsection 127(1) (information about a young
person).
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Testimony of a
parent
|
148. (1)
In any proceedings under this Act, the testimony
of a parent as to the age of a person of
whom he or she is a parent is admissible
as evidence of the age of that person.
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Evidence of age
by certificate or record
|
(2) In any proceedings
under this Act,
(a) a birth
or baptismal certificate or a copy of it
purporting to be certified under the hand
of the person in whose custody those records
are held is evidence of the age of the person
named in the certificate or copy; and
(b) an entry
or record of an incorporated society that
has had the control or care of the person
alleged to have committed the offence in
respect of which the proceedings are taken
at or about the time the person came to
Canada is evidence of the age of that person,
if the entry or record was made before the
time when the offence is alleged to have
been committed.
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Other evidence
|
(3) In the absence
of any certificate, copy, entry or record
mentioned in subsection (2), or in corroboration
of that certificate, copy, entry or record,
the youth justice court may receive and
act on any other information relating to
age that it considers reliable.
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When age may be
inferred
|
(4) In any proceedings
under this Act, the youth justice court
may draw inferences as to the age of a person
from the person's appearance or from statements
made by the person in direct examination
or cross-examination.
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Admissions
|
149. (1)
A party to any proceedings under this Act
may admit any relevant fact or matter for
the purpose of dispensing with proof of
it, including any fact or matter the admissibility
of which depends on a ruling of law or of
mixed law and fact.
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Other party may
adduce evidence
|
(2) Nothing in this
section precludes a party to a proceeding
from adducing evidence to prove a fact or
matter admitted by another party.
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Material evidence
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150. Any
evidence material to proceedings under this
Act that would not but for this section
be admissible in evidence may, with the
consent of the parties to the proceedings
and if the young person is represented by
counsel, be given in such proceedings.
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Evidence of a
child or young person
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151. The
evidence of a child or a young person may
be taken in proceedings under this Act only
after the youth justice court judge or the
justice in the proceedings has
(a) if the witness
is a child, instructed the child as to the
duty to speak the truth and the consequences
of failing to do so; and
(b) if the witness
is a young person and the judge or justice
considers it necessary, instructed the young
person as to the duty to speak the truth
and the consequences of failing to do so.
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Proof of service
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152. (1)
For the purposes of this Act, service of
any document may be proved by oral evidence
given under oath by, or by the affidavit
or statutory declaration of, the person
claiming to have personally served it or
sent it by confirmed delivery service.
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Proof of signature
and official character unnecessary
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(2) If proof of service
of any document is offered by affidavit
or statutory declaration, it is not necessary
to prove the signature or official character
of the person making or taking the affidavit
or declaration, if the official character
of that person appears on the face of the
affidavit or declaration.
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Seal not required
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153. It
is not necessary to the validity of any
information, indictment, summons, warrant,
minute, sentence, conviction, order or other
process or document laid, issued, filed
or entered in any proceedings under this
Act that any seal be attached or affixed
to it.
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Forms, Regulations
and Rules of Court
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Forms
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154. (1)
The forms prescribed under section 155,
varied to suit the case, or forms to the
like effect, are valid and sufficient in
the circumstances for which they are provided.
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If forms not prescribed
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(2) In any case for
which forms are not prescribed under section
155, the forms set out in Part XXVIII of
the Criminal Code, with any modifications
that the circumstances require, or other
appropriate forms, may be used.
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Regulations
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155. The
Governor in Council may make regulations
(a) prescribing
forms that may be used for the purposes
of this Act;
(b) establishing
uniform rules of court for youth justice
courts across Canada, including rules regulating
the practice and procedure to be followed
by youth justice courts; and
(c) generally
for carrying out the purposes and provisions
of this Act.
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Agreements with
Provinces
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Agreements with
provinces
|
156. Any
minister of the Crown may, with the approval
of the Governor in Council, enter into an
agreement with the government of any province
providing for payments by Canada to the
province in respect of costs incurred by
the province or a municipality in the province
for care of and services provided to young
persons dealt with under this Act.
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Programs
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Community-based
programs
|
157. The
Attorney General of Canada or a minister
designated by the lieutenant governor in
council of a province may establish the
following types of community-based programs:
(a) programs
that are an alternative to judicial proceedings,
such as victim-offender reconciliation programs,
mediation programs and restitution programs;
(b) programs
that are an alternative to detention before
sentencing, such as bail supervision programs;
and
(c) programs
that are an alternative to custody, such
as intensive support and supervision programs,
and programs to carry out attendance orders.
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PART 8
TRANSITIONAL PROVISIONS
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Prohibition on
proceedings
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158. On
and after the coming into force of this
section, no proceedings may be commenced
under the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
in respect of an offence within the meaning
of that Act, or under the
Juvenile Delinquents
Act
, chapter J-3 of the Revised Statutes
of Canada, 1970, in respect of a delinquency
within the meaning of that Act.
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Proceedings commenced
under Young Offenders Act
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159. (1)
Subject to section 161, where, before the
coming into force of this section, proceedings
are commenced under the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985, in respect of an offence
within the meaning of that Act alleged to
have been committed by a person who was
at the time of the offence a young person
within the meaning of that Act, the proceedings
and all related matters shall be dealt with
in all respects as if this Act had not come
into force.
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Proceedings commenced
under Juvenile Delinquents Act
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(2) Subject to section
161, where, before the coming into force
of this section, proceedings are commenced
under the Juvenile Delinquents Act,
chapter J-3 of the Revised Statutes of Canada,
1970, in respect of a delinquency within
the meaning of that Act alleged to have
been committed by a person who was at the
time of the delinquency a child as defined
in that Act, the proceedings and all related
matters shall be dealt with under this Act
as if the delinquency were an offence that
occurred after the coming into force of
this section.
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Offences committed
before this section in force
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160. Any
person who, before the coming into force
of this section, while he or she was a young
person, committed an offence in respect
of which no proceedings were commenced before
the coming into force of this section shall
be dealt with under this Act as if the offence
occurred after the coming into force of
this section, except that
(a) paragraph
62(a) applies only if the offence
is one set out in paragraph (a) of
the definition "presumptive offence" in
subsection 2(1) and the young person was
at least sixteen years old at the time of
its commission;
(b) paragraph
110(2)(b) does not apply in respect
of the offence; and
(c) paragraph
42(2)(r) applies in respect of the
offence only if the young person consents
to its application.
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Applicable sentence
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161. (1)
A person referred to in section 159 who
is found guilty of an offence or delinquency,
other than a person convicted of an offence
in ordinary court, as defined in subsection
2(1) of the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, shall be sentenced under this Act,
except that
(a) paragraph
110(2)(b) does not apply in respect
of the offence or delinquency; and
(b) paragraph
42(2)(r) applies in respect of the
offence or delinquency only if the young
person consents to its application.
The provisions
of this Act applicable to sentences imposed
under section 42 apply in respect of the
sentence.
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Dispositions under
paragraph 20(1)(k) or (k.1)
of Young Offenders Act
|
(2) Where a young person
is to be sentenced under this Act while
subject to a disposition under paragraph
20(1)(k) or (k.1) of the
Young Offenders Act, chapter Y-1
of the Revised Statutes of Canada, 1985,
on the application of the Attorney General
or the young person, a youth justice court
shall, unless to do so would bring the administration
of justice into disrepute, order that the
remaining portion of the disposition made
under that Act be dealt with, for all purposes
under this Act or any other Act of Parliament,
as if it had been a sentence imposed under
paragraph 42(2)(n) or (q)
of this Act, as the case may be.
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Review of sentence
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(3) For greater certainty,
for the purpose of determining when the
sentence is reviewed under section 94, the
relevant date is the one on which the disposition
came into force under the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985.
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Proceedings commence
with information
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162. For
the purposes of sections 158 to 160, proceedings
are commenced by the laying of an information
or indictment.
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Application to
delinquency and other offending behaviour
|
163. Sections
114 to 129 apply, with any modifications
that the circumstances require, in respect
of records relating to the offence of delinquency
under the Juvenile Delinquents Act,
chapter J-3 of the Revised Statutes of Canada,
1970, and in respect of records kept under
sections 40 to 43 of the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985.
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Agreements continue
in force
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164. Any
agreement made under the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985, remains in force until
it expires, unless it is amended or a new
agreement is made under this Act.
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Designation of
youth justice court
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165. (1)
Any court established or designated as a
youth court for the purposes of the
Young
Offenders Act
, chapter Y-1 of the Revised
Statutes of Canada, 1985, is deemed, as
of the coming into force of this section,
to have been established or designated as
a youth justice court for the purposes of
this Act.
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Designation of youth
justice court judges
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(2) Any person appointed
to be a judge of the youth court for the
purposes of the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, is deemed, as of the coming into force
of this section, to have been appointed
as a judge of the youth justice court for
the purposes of this Act.
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Designation of provincial
directors and youth workers
|
(3) Any person, group
or class of persons or body appointed or
designated as a provincial director for
the purposes of the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, and any person appointed or designated
as a youth worker for the purposes of that
Act is deemed, as of the coming into force
of this section, to have been appointed
or designated as a provincial director or
youth worker, as the case may be, for the
purposes of this Act.
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Designation of review
boards and youth justice committees
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(4) Any review board
established or designated for the purposes
of the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
and any youth justice committee established
for the purposes of that Act is deemed,
as of the coming into force of this section,
to have been established or designated as
a review board or a youth justice committee,
as the case may be, for the purposes of
this Act.
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Alternative measures
continued as extrajudicial sanctions
|
(5) Any program of
alternative measures authorized for the
purposes of the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, is deemed, as of the coming into force
of this section, to be a program of extrajudicial
sanctions authorized for the purposes of
this Act.
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Designation of places
of temporary detention and youth custody
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(6) Subject to subsection
(7), any place that was designated as a
place of temporary detention or open custody
for the purposes of the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes
of Canada, 1985, and any place or facility
designated as a place of secure custody
for the purposes of that Act is deemed,
as of the coming into force of this section,
to have been designated for the purposes
of this Act as
(a) in the case
of a place of temporary detention, a place
of temporary detention; and
(b) in the case
of a place of open custody or secure custody,
a youth custody facility.
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Exception
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(7) If the lieutenant
governor in council of a province makes
an order under section 88 that the power
to make determinations of the level of custody
for young persons and to review those determinations
be exercised in accordance with the
Young
Offenders Act
, chapter Y-1 of the Revised
Statutes of Canada, 1985, the designation
of any place as a place of open custody
or secure custody for the purposes of that
Act remains in force for the purposes of
section 88, subject to revocation or amendment
of the designation.
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Designation of other
persons
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(8) Any person designated
as a clerk of the youth court for the purposes
of the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada, 1985,
or any person or group of persons who were
designated under that Act to carry out specified
functions and duties are deemed, as of the
coming into force of this section, to have
been designated as a clerk of the youth
justice court, or to carry out the same
functions and duties, as the case may be,
under this Act.
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PART 9
CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING
INTO FORCE
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Consequential Amendments
166. to
198. [Amendments]
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Repeal
199. [Repeal]
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Coming into Force
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Coming into force
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*200.
The provisions of this Act come into force
on a day or days to be fixed by order of
the Governor in Council.
*[Note: Act in force April
1, 2003, see SI/2002-91.]
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SCHEDULE
(
Subsections
120(1), (4) and (6)
)
1. An offence under
any of the following provisions of the
Criminal Code:
(a) paragraph
81(2)(a) (using explosives);
(b) subsection
85(1) (using firearm in commission of offence);
(c) section
151 (sexual interference);
(d) section
152 (invitation to sexual touching);
(e) section
153 (sexual exploitation);
(f) section
155 (incest);
(g) section
159 (anal intercourse);
(h) section
170 (parent or guardian procuring sexual
activity by child);
(i) subsection
212(2) (living off the avails of prostitution
by a child);
(j) subsection
212(4) (obtaining sexual services of a child);
(k) section
231 or 235 (first degree murder or second
degree murder within the meaning of section
231);
(l) section
232, 234 or 236 (manslaughter);
(m) section
239 (attempt to commit murder);
(n) section
267 (assault with a weapon or causing bodily
harm);
(o) section
268 (aggravated assault);
(p) section
269 (unlawfully causing bodily harm);
(q) section
271 (sexual assault);
(r) section
272 (sexual assault with a weapon, threats
to a third party or causing bodily harm);
(s) section
273 (aggravated sexual assault);
(t) section
279 (kidnapping);
(u) section
344 (robbery);
(v) section
433 (arson -- disregard for human life);
(w) section
434.1 (arson -- own property);
(x) section
436 (arson by negligence); and
(y) paragraph
465(1)(a) (conspiracy to commit murder).
2. An offence under
any of the following provisions of the
Criminal Code, as they read immediately
before July 1, 1990:
(a) section
433 (arson);
(b) section
434 (setting fire to other substance); and
(c) section
436 (setting fire by negligence).
3. An offence under
any of the following provisions of the
Criminal Code, chapter C-34 of the
Revised Statutes of Canada, 1970, as they
read immediately before January 4, 1983:
(a) section
144 (rape);
(b) section
145 (attempt to commit rape);
(c) section
149 (indecent assault on female);
(d) section
156 (indecent assault on male); and
(e) section
246 (assault with intent).
4. An offence under
any of the following provisions of the
Controlled Drugs and Substances Act:
(a) section
5 (trafficking);
(b) section
6 (importing and exporting); and
(c) section
7 (production of substance).
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AMENDMENTS NOT IN FORCE
-- 2002, c. 13,
s. 91:
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Bill C-7
|
91. (1) If Bill
C-7, introduced in the 1st session of the
37th Parliament and entitled the
Youth
Criminal Justice Act
(the "other Act"),
receives royal assent, then
(a) paragraph
32(3)(c) of the other Act is replaced
by the following:
(c) explain
that the young person may plead guilty or
not guilty to the charge or, if subsection
67(1) (election of court for trial -- adult
sentence) or (3) (election of court for
trial in Nunavut -- adult sentence) applies,
explain that the young person may elect
to be tried by a youth justice court judge
without a jury and without having a preliminary
inquiry, or to have a preliminary inquiry
and be tried by a judge without a jury,
or to have a preliminary inquiry and be
tried by a court composed of a judge and
jury and, in either of the latter two cases,
a preliminary inquiry will only be conducted
if requested by the young person or the
prosecutor.
(b) subsection
67(2) of the other Act is replaced by the
following:
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Wording of election
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(2) The youth justice
court shall put the young person to his
or her election in the following words:
You have the option
to elect to be tried by a youth justice
court judge without a jury and without having
had a preliminary inquiry; or you may elect
to be tried by a judge without a jury; or
you may elect to be tried by a court composed
of a judge and jury. If you do not elect
now, you are deemed to have elected to be
tried by a court composed of a judge and
jury. If you elect to be tried by a judge
without a jury or by a court composed of
a judge and jury or if you are deemed to
have elected to be tried by a court composed
of a judge and jury, you will have a preliminary
inquiry only if you or the prosecutor requests
one. How do you elect to be tried?
(c) subsection
67(4) of the other Act is replaced by the
following:
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Wording of election
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(4) The youth justice
court shall put the young person to his
or her election in the following words:
You have the option
to elect to be tried by a judge of the Nunavut
Court of Justice alone, acting as a youth
justice court without a jury and without
a preliminary inquiry; or you may elect
to be tried by a judge of the Nunavut Court
of Justice, acting as a youth justice court
without a jury; or you may elect to be tried
by a judge of the Nunavut Court of Justice,
acting as a youth justice court with a jury.
If you elect to be tried by a judge without
a jury or by a judge, acting as a youth
justice court, with a jury or if you are
deemed to have elected to be tried by a
judge, acting as a youth justice court,
with a jury, you will have a preliminary
inquiry only if you or the prosecutor requests
one. How do you elect to be tried?
(d) paragraph
67(5)(b) of the other Act is replaced
by the following:
(b) if the judge
declines to do so, shall hold a preliminary
inquiry, if requested to do so by one of
the parties, unless a preliminary inquiry
has been held prior to the election, re-election
or deemed election.
(e) subsection
67(7) of the other Act is replaced by the
following:
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Preliminary inquiry
|
(7) When a young person
elects to be tried by a judge without a
jury, or elects or is deemed to have elected
to be tried by a court composed of a judge
and jury, the youth justice court referred
to in subsection 13(1) shall, on the request
of the young person or the prosecutor made
at that time or within the period fixed
by rules of court made under section 17
or 155 or, if there are no such rules, by
the youth justice court judge, conduct a
preliminary inquiry and if, on its conclusion,
the young person is ordered to stand trial,
the proceedings shall be conducted
(a) before a
judge without a jury or a court composed
of a judge and jury, as the case may be;
or
(b) in Nunavut,
before a judge of the Nunavut Court of Justice
acting as a youth justice court, with or
without a jury, as the case may be.
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Preliminary inquiry
if two or Read More ..cused
|
(7.1) If two or more
young persons are jointly charged in an
information and one or Read More .. them make
a request for a preliminary inquiry under
subsection (7), a preliminary inquiry must
be held with respect to all of them.
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When no request
for preliminary inquiry
|
(7.2) If no request
for a preliminary inquiry is made under
subsection (7), the youth justice court
shall fix the date for the trial or the
date on which the young person must appear
in the trial court to have the date fixed.
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Coming into force
|
(2) Subsection
(1) comes into force
(a) in the
case of paragraph (a), on the later
of the coming into force of section 25 of
this Act and section 32 of the other Act;
and
(b) in the
case of paragraphs (b) to (e),
on the later of the coming into force of
section 25 of this Act and section 67 of
the other Act.
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