What sentences or dispositions can be imposed under the YCJA?

Stephen R. Biss, Barrister & Solicitor explains the wide assortment of options for sentencing available to a Youth Justice Court Judge.

Sentencing is a very important part of criminal law. A Youth Court Judge will never make a snap decision in Youth Court about Sentencing. A Judge will need to know all the facts in order to impose a just sentence that fits both the crime and the specific offender. That's why it is so important that your lawyer hammer out the true facts of the offence whether by negotiations with the Crown or after a full hearing with evidence being called, whether guilty plea or not guilty plea. Your lawyer will need to do a lot of work to convince the Judge that you and/or your child of persons of good character and reputation and that this incident will never happen again. Your lawyer will have recommendations about counselling pre or post sentencing. Your lawyer may or may not recommend an assessment or pre-sentence (pre-disposition report).

 

Even though the young person may be "guilty" of some bad behaviour, that behaviour may not constitute a criminal offence under the youth criminal justice system of criminal law.

 

Even though the young person may be "guilty" of some criminal offence, he or she may have been charged with the wrong offence. Police may have charged excessively with multiple youth court offences or a more serious offence when in fact the adolescent is responsible for one lesser offence. 

 

The facts in the police synopsis in a juvenile Court are often wrong. Erroneous or exaggerated facts need to be deleted or modified from the synopsis by your lawyer before finding of guilt and sentencing. That sorting out of the facts requires real negotiation between your criminal defence lawyer and the Assistant Crown Attorney in Youth Court.

 

Youth Court Judges sentence thousands of accused persons, both adult offenders and young offenders. A young person who comes to Court without a criminal law advocate may look very similar to every other young offender the Youth Court Judge has sentenced, including the worst young offenders. An essential task for a juvenile court defence lawyer is to convince the Youth Judge that his or her client is a unique individual of otherwise impeccable character, who has learned their lesson, has already been disciplined by their parent(s), and provide the Court with character references and other good reasons for a lighter than usual sentence with less serious long term repercussions to reputation.

 

Youth Court Judges have many sentencing tools as detailed below. Which sentence will best fit your unique situation and have the least impact on future education, employment, and life? 

 

Stephen Biss, a criminal defence lawyer in Mississauga, Ontario, has been fighting in Greater Toronto Area Youth Courts for sentences that fit the crime and the individual for more than 35 years. My curriculum vitae says a lot about my involvement in teaching lawyers and other professionals about the rights of young persons to just sentences in Brampton, Guelph, Milton, Hamilton, Kitchener, Orangeville, and other Toronto Area Youth Courts.


​Here is an excerpt from the YCJA indicating the factors to be considered and the sentences that can be imposed by a Youth Court Judge under the YCJA:

 

  • 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.

 

  • 2002, c. 1, s. 38;

  •  2012, c. 1, s. 172.

Marginal note:Committal to custody
  •  (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

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

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

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

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

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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).

 

  • 2002, c. 1, s. 39;

  •  2012, c. 1, s. 173.

 

 

 

Considerations as to youth sentence
  •  (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.

  • Marginal note: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 section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, 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.

contact us

Contact us for an initial consultation.

Stephen R. Biss

Barrister & Solicitor

303-470 Hensall Circle

Mississauga, ON

L5A 3V4

905-273-3322

biss@lawyers.ca

Youth Courts We Cover

We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

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