What is a YCJA psychological assessment?
The purpose of the criminal law is not to help parents get treatment for their children. Criminal law has to do with crime and punishment not health care, mental health, behaviour change, or counselling. Criminal law requires a crime. If there is no crime there can be no punishment by the Court. Young persons have the right to refuse treatment in Canada, subject to provincial health care and child welfare law, and the wishes of their parents if the child is younger than the health care age of consent law.
However, a Youth Court Judge can impose some treatment as part of criminal law punishment under the sentencing provisions of the YCJA. As an aid to the imposition of such a sentence, which will only happen AFTER a finding of guilt, the Youth Justice Court Judge may order a psychological assessment. Such assessments are sometimes pertformed by a private pscychologist but in busy jurisdictions may be conducted by a Court clinic.
There are some other circumstances in which a psychological assessment can be ordered by the Court.
In rare circumstances the young person may wish to consent to a psychological assessment. A young person should never consent to a psychological assessment without very detailed legal advice. Admissions made by the young person or by a parent during a psychological assessment could result in further criminal charges or in exacerbation of sentence.
Excerpt from the YCJA:
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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
(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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
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.