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Sections of the Youth Criminal Justice Act of Special Interest to Law Enforcement

The Youth Criminal Justice Act has made a number of significant changes to the law as stated in the Young Offenders Act. Highlights of those changes and sections of interest to police follow.

Issues covered by the Youth Criminal Justice Act

Preamble
This is new; there was no Preamble in the Young Offenders Act. The Preamble does not have the same force of law as the provisions of the Act but it is useful in helping to set the stage for the Act and give some insight on the intentions behind the new law.

s. 2 Definitions
There are 25 definitions, 17 of which are new to youth justice legislation. These need to be reviewed. The following are new definitions: adult sentence, Attorney General, conference, confirmed service delivery, custodial portion, disclosure, extrajudicial measures, extrajudicial sanction, pre-sentence report, presumptive offence, publication, record, serious violent offence, youth custody facility, youth justice court, youth justice court judge, and youth sentence.

s. 3 Declaration of Principles
The principles in the Youth Criminal Justice Act have been carefully drafted and are an essential part of the Act. The principles in different parts of the Act must be read together. See ss. 3, 4, 38 and 83. All the principles must be read carefully in order to ensure that they are understood and that the provisions of the Youth Criminal Justice Act are properly interpreted.

Part 1 EXTRAJUDICIAL MEASURES ss. 4-12

s. 4 Declaration of Principles for the use of EJM.

s. 5 Objectives of Extrajudicial Measures.

s. 6 Extrajudicial Measures EJM

Police SHALL consider EJM options. This section places an obligation on a police officer, before starting judicial proceedings, to consider whether taking no action, warning the Young Persons, cautioning the Young Persons (if a program has been established under s. 7 ), or referring a Young Persons to a community based program would be sufficient action.

s. 7 Police Cautions

This section authorizes the Attorney General to establish a "police cautioning program". Decisions will be made by each jurisdiction as to whether there will be a program and if there is, how it will operate. Australia and England have used formal cautioning programs.

s. 8 Crown Cautions

This section authorizes the Attorney General to establish a "Crown caution program".

This option is currently (February 2003) being used in both Alberta and British Columbia. Crown cautions can be used both pre-charge and post charge. In order for them to be used pre-charge there will probably need to be a pre-charge screening program in place.
Crown cautions may take the form of a letter sent to the young person and the parent advising that the Crown will not be proceeding with the case and noting that there is a record of the caution letter.

s. 9 Evidence of measures (EJM) under ss. 6,7, or 8 are inadmissible in court.

s. 10 Extrajudicial Sanctions (EJS) EJS are to be used only if the officer concludes that a young person cannot adequately be dealt with by a warning, caution, or referral. The onus therefore is on the officer to proceed with the least intrusive option. The conditions and the restrictions for the use of EJS are set out. (subs. 10(2) and (3))

s. 11 Notice to parent.

s. 12 Victim’s right to information. This section requires that, if EJS are used, then the victim is to be advised of the identity of the young person on request.

Part 2 ORGANIZATION OF THE YOUTH CRIMINAL JUSTICE SYSTEM ss. 13-22

subs. 14(2) Peace Bonds under the Criminal Code. ss. 810, 810.01 and 810.2. Youth justice courts may issue peace bonds.

s. 16 Status of a person uncertain This section has a very specific purpose: to make sure that a case does not fall between the cracks because of uncertainty whether the person was a young person or an adult at the time of the commission of the offence. Under the Young Offenders Act, for example, if the age of the person could not be established as either 17 or 18 at the time of the offence, then it was possible that neither the youth court nor the adult court would have jurisdiction to hear the case. This section addresses that problem.
s. 18 Youth Justice Committees and possible expanded functions.

s. 19 Conferences authorized for police and others. Note that conferences in this section and in the Youth Criminal Justice Act are for the purpose of assisting a decision-maker in making a decision.

s. 19 of the Youth Criminal Justice Act provides that “A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene … a conference for the purpose of making a decision required under this Act”.

There are other kinds of practices in communities that may be called “conferences”, such as Community Justice Forums, Family Group Conferences and Community Group Conferences.

When discussing “conferences” or “conferencing”, note that not all partners in the justice system use the same terminology.

For youth justice purposes, RCMP “conferences” are as defined in s. 19 of the Youth Criminal Justice Act.

The RCMP will continue to use restorative justice practices that do not constitute “conferences” under the legislation.

Subs. 20(2) Peace Bonds Criminal Code s. 810. Justices of the Peace may issue Peace Bonds under s. 801 unless they are precluded from doing so in the jurisdiction.

Part 3 JUDICIAL MEASURES ss. 23-37

s. 23 Pre-charge screening if a program is established by the Attorney General. The legislation contains authority for the Attorney General to establish a "pre-charge screening program". Such a program would have a direct impact on the number of charges laid would and support one of the main goals of the Youth Criminal Justice Act: to keep youth out of the formal justice system and out of custody.

New Brunswick, Quebec, and British Columbia currently (February 2003) have pre-charge screening programs. Pilots are being run or considered in other jurisdictions.

s. 24 No private prosecutions under the Youth Criminal Justice Act Private prosecutions of young persons require the consent of the Attorney General (A.G. includes an agent of the A.G.).

s. 25 Right to counsel

The right to counsel is one of the areas of enhanced protection for young persons and is one of the most fundamental rights set out in the Youth Criminal Justice Act. It is essential that a young person be afforded the opportunity to contact counsel as provided in the Youth Criminal Justice Act ( see also the discussion of s. 146 - the admissibility of statements made by young persons).

This section sets out a number of requirements that police should be familiar with in order to comply with the young person's right to counsel. This section is not a complete statutory summary of all the rights of a young person in regard to the right to counsel. It is necessary to be aware that other provisions in this Act recognize and enhance the right to counsel (see s. 146). In addition, police should continue to monitor case law in this area to ensure that the rights of young persons to counsel are met.

It is fair to presume that young persons have all the rights of adults to legal counsel and more. It is also necessary that young persons be given the right to consult a parent or other adult in some circumstances.
The general rule, as stated in ss. 25(1), is that a young person has the right to "retain and instruct" counsel at any stage of the proceedings, including the consideration of the use of EJS. (see also s. 146 and the Charter)

The Charter
The Charter right of a person on arrest or detention to consult counsel is recognized in subs. 25(2).

Police should be aware that subs. 25(9) requires that a statement of the right to counsel "shall be included in" the following documents:
appearance notice,
summons,
warrant to arrest,
promise to appear,
undertaking or recognizance entered into before an officer in charge,
notices under subs. 97(3), 102(1), 103(1), 104(1), 105(1) or 109(1), and
any notice of a review of a sentence.

s. 26 Notice to Parents - There are a number of provisions of the Act that require parents to be advised of steps taken under this Act. This is to encourage the participation of parents and other adults who may support the young person and who may be the strongest community link for that young person.

Section 26 requires the parents of a young person to be advised of the arrest or detention of a young person, of notice of process issued against a young person, and of notice of court appearances and proceedings.

ss. 28-33 Detention before Sentencing

The concern about over-reliance on incarceration also extends to pre-trial custody and some of the new rules address this concern.
There is a concern over the incarceration of young persons prior to their first appearance in court and prior to trial; therefore, there have been limitations placed on young persons being incarcerated before sentencing.

s. 28 The general rule is that the Criminal Code applies except as varied by the Youth Criminal Justice Act.

subs. 29(1) The use of custody prior to sentencing is prohibited "as a substitute for appropriate child protection, mental health or other social measures".

s. 30 Provides for the designation of "places of temporary detention" and addresses young people being held separate from adults.

s. 31 Responsible Person - release to a RP
This is a significant variation to the Criminal Code. Subs. 31(1) provides for the release of a young person to the custody of a "Responsible Person" and subs. 31(2) requires the Youth Justice Court (YJC) to "inquire as to the availability of a responsible person" before detaining a young person in custody. If there is a bail hearing seeking pre-trial detention and if the youth court judge determines that detention is justified, then the court must make an inquiry under subs. 31(2) to see whether there is a responsible person to whose custody the Young Persons can be released. The judge will probably direct this question to the Crown and defence and in turn they may seek the advice of the police. Members therefore may want to consider making this inquiry during the investigation if pre-trial detention will be sought. The practice will develop as time goes by but until the practice or a policy is defined, police are advised to make this inquiry before arriving in court in order to save time and to reduce the possibility of an adjournment of a bail hearing for this purpose.

subs. 31(5) and (6) A warrant may be issued in certain circumstances.

ss. 32 and 33 The rules relating to the first appearance of the Young Persons in court are set out in these sections.

s. 35 The legislation authorizes the referral, by a youth justice court judge, to a child welfare agency for an assessment. There is some debate on how this provision will be used in the courts.

subs. 37(4) Appeals. A number of decisions under the Youth Criminal Justice Act may be appealed as part of the sentence.

Part 4 SENTENCING ss. 38-82

s. 38 Purpose and Principles of Sentencing

These sections should be reviewed in order to understand the approach the new legislation takes toward holding the young person accountable within a framework of sentences that are proportionate to the offence.

s. 39 Limitations on a youth justice court in ordering a custodial sentence. This section needs to be examined together with ss. 28-33 when considering keeping a Young Persons in custody pre-trial.

s. 40 Pre-sentence report.

s. 41 Recommendations of a conference.

subs. 42(2) New sentencing options. The sentences available to the court have been expanded and enhanced. There are 18 sentencing options available to a youth justice court, 7 of which are new.

s. 51 Mandatory Prohibition Orders special rules (see also para. 42(2)(j) and subs. 119(3) and (10).

ss. 61-81 Adult Sentences
There are no longer any "transfers to ordinary court". Instead the Crown will seek an adult penalty to be imposed by the youth justice court.

Police need to review and become familiar with the intent of these provisions and the procedure generally. If an adult sentence is being sought, then there is a requirement that the Crown give notice of that fact to the young person prior to a plea being entered. This is necessary in order for the young person to be informed on the jeopardy faced prior to entering a plea.

There is no requirement on the Crown to give a notice to the young person if the offence is one for which there is a statutory presumption under paragraph (a) of the definition of "presumptive offence".

(NOTE** there is an obligation on police to advise a young person that an adult sentence is presumed or may be sought and may be imposed. The requirement of notice to a young person prior to the giving of a statement to a person in authority will be examined under s. 146.)

s. 82 Effect of the termination of a youth sentence.

Part 5 CUSTODY AND SUPERVISION ss. 83-109


s. 83 Purpose and principles of the youth justice custody and supervision system.

s. 91 Reintegration leaves. A young person may be released from custody, for certain purposes, subject to terms or conditions for a period not to exceed 30 days, which can be renewed. The provincial director may, at any time, revoke the authorization under subs. 91(1). If this occurs or if a Young Persons fails to comply with any term or condition of a reintegration, then the Young Persons may be arrested without warrant. The police have a keen interest in the provisions that relate to suspension of community status and the process for arrest and bringing the young person back to custody. (subs. 91(4))

s. 94 Annual review of a youth sentence which review may result in the release of a Young Persons on conditional supervision.

s. 97 Setting of conditions for the community portion of a custody and supervision order made under para. 42(2)(n).

s. 98 Application for the continuation of custody.

s. 102 Community Supervision. When a Young Persons breaches the conditions of the community supervision portion of their custody and supervision order, it will be necessary to consult the provincial director, who may order the apprehension of the Young Persons.

s. 104 Continuation of custody for sentences under paras. 42(2)(o),(q) or (r) will require an application by the Attorney General.

s. 105 Conditional Supervision. Setting the conditions for the community portion of a custody and supervision order under paras. 42(2)(o), (q) or ( r).

s. 106 Suspension of conditional supervision.

s. 107 Apprehension and possible warrant where there is a breach of the terms of conditional supervision. The provincial director may suspend the conditional supervision if there are reasonable grounds to believe that a Young Persons has breached or is about to breach a condition of an order made under subs. 105(1). A warrant may be issued by the provincial director.

s. 108 Review by the provincial director if a Young Persons is returned to custody for an alleged breach of the terms of conditional supervision.

Part 6 PUBLICATION, RECORDS AND INFORMATION ss. 110-129

s. 110 General rule against publication of names and some exceptions.

subs. 110(4) and (5) Ex parte application by a peace officer for publication of the identity of a Young Persons. An order ceases to have effect after 5 days.

s. 111 Protection of identity of victims and witnesses.

s. 112 Identity, once published under certain sections, no longer protected.

s. 113 Application of the Identification of Criminals Act.

s. 115 Police records including records kept in the central repository.

para. 116(1)(a) Government records may be kept for certain purposes including “for the purposes of an investigation”.

s. 117 Limitations on the access to records in ss. 118-129 do not apply once an adult sentence has been imposed and the appeal period has expired or the court of appeal has upheld that decision.

s. 118 General rule. There is no access to records unless authorized by the Youth Criminal Justice Act.

subs. 119(6) Persons having access to records (subs. 119(1)), time periods for access (subs. 119(2)) and special rules: prohibition orders (subs. 119(3)), extrajudicial measures (subs. 119(4)), records of assessments or forensic DNA analysis.

s. 120 Access to RCMP records. Persons who may have access (subs. 120(1)), purposes of access (subs. 120(2) and (3)) and subsequent offences as a Young Persons and adult (subs. 120(4) and (6)) (see also references in subs. 120(1), (4) and (6) to the SCHEDULE of offences at the end of the Youth Criminal Justice Act).

s. 124 Peace Officer may disclose records kept under ss. 114 and 115 to the Young Persons or the counsel for the Young Persons.

subs. 125(8) Disclosure is permitted during an investigation (subs. 125(1)), to insurance companies investigating a claim (subs. 125(4)) and to schools for certain purposes (subs. 125(6)) but the time limits under subs. 119(2) apply.

subs. 128(5) Disposition and destruction of records including disposal of RCMP records and purging CPIC (subs. 128 (1) to (4)) and the exception to subs. 128(1), (20) and (4) for information kept “to match crime scene information”.

Part 7 GENERAL PROVISIONS ss. 130-157

s. 133 Transfer of charges.

ss. 136-139 Offences and punishment The Youth Criminal Justice Act is basically a procedural statute but there are a number of offences created by the Act, some of which are set out in ss. 136-139. These offences were found in different parts of the Young Offenders Act. The Youth Criminal Justice Act has brought them together for convenience.

ss. 140-142 Application of the Criminal Code.

s. 140 The general rule is that the provisions of the Criminal Code apply to proceedings under this Act.

ss. 141 and 142 These sections provide some of the details for the application of the Criminal Code.
The offences set out in the Criminal Code apply to procedures under this Act and form the basis for most proceedings in the Youth Justice Court.

s. 143 Indictable and summary conviction offences may be charged in the same information.

s. 144 The youth justice court may issue a subpoena for the attendance of a person required to give evidence, whether or not that person is in the same province. If the person is not in the same province, then the subpoena shall be served personally.

subs. 144(2) Service of a subpoena.

s. 145 Warrant. A warrant issued by the YJC may be executed anywhere in Canada.

ss. 146-152 Evidence.

s. 146 Statements by young persons. This section details the rights of Young Personss and the obligations on police. S. 146 sets out the rules relating to the taking of statements from young persons and requires close attention by police. It is essential to public confidence that police officers are able to take statements in a manner that is consistent with this section. (See the link to the DRAFT Form for Statement of a Young Person — Form 9.1 on the DOJ Canada website.)

s. 147 Statements not admissible.

s. 151 Evidence of a child or young person.

s. 152 Proof of service of any document.

ss. 157 Community-based programs.

Part 8 TRANSITIONAL PROVISIONS ss. 158-165

There will be questions about cases that have started before April 1, 2003 but have not yet been completed, cases where the trial has occurred but sentencing has not been imposed, and cases where the offence occurred before April 1, 2003 but no proceedings were commenced.

These sections are designed to allow for a smooth transition from the Young Offenders Act to the Youth Criminal Justice Act. The provisions clarify what to do if a case has been commenced under the Young Offenders Act but not completed or if an offence has been committed before the Youth Criminal Justice Act comes into force but no action has been taken.

These provisions are of critical importance during the transitional period that could last for years.

s. 158 No new proceedings under the Young Offenders Act after April 1, 2003.

s. 159 Proceedings commenced under the Young Offenders Act before April 1, 2003 shall continue under the Young Offenders Act, subject to s. 161.

s. 160 Offences committed before April 1, 2003: where proceedings are not commenced until after April 1, 2003 the Youth Criminal Justice Act will apply with a few exceptions.

s. 161 All sentencing after April 1, 2003, with a few exceptions, will be under the Youth Criminal Justice Act.

s. 162 Proceedings are commenced by the laying of an information or indictment.

s. 165 Designations under the Young Offenders Act are preserved until new designations are made.

Part 9 CONSEQUENTIAL AMENDMENTS, REPEAL AND COMING INTO FORCE ss. 166-200

The coming into force of the Youth Criminal Justice Act impacts other statutes. The purpose of these sections is to make sure that the Acts referred to can be read clearly and that they operate smoothly together. Some of the information is now out of date because of the passage of time. If reference is made to these sections, then reference must also be made to the most current version of the other statute.

This Part of the Youth Criminal Justice Act deals with other statutes that are affected by the provisions of the Youth Criminal Justice Act: Canada Evidence Act, Contraventions Act, Corrections and Conditional Release Act, Criminal Code, DNA Identification Act, Extradition Act, Mutual Legal Assistance in Criminal Matters Act, Prisons and Reformatories Act, and Transfer of Offenders Act.

s. 199 This section repeals the Young Offenders Act.

s. 200 Coming into force of the Youth Criminal Justice Act
An Order in Council dated May 29, 2002 provides for the coming into force on April 1, 2003.

SCHEDULE of offences — subs. 120(1), (4) and (6)
The SCHEDULE sets out a list of offences to which the rules in s. 120 apply.