A LAYPERSON'S GUIDE TO THE YOUNG OFFENDERS ACT AND THE YOUTH CRIMINAL JUSTICE ACT
The Young Offenders Act was proclaimed into law in Canada on April 2, 1984.
It replaced the Juvenile Delinquents Act, which had been in place for the
previous 75 years. The YOA (as it has been called as a result of our love for
acronyms) brought about significant changes from that previous legislation. Many
were considered controversial right from the beginning and the critics started
complaining even before it was officially proclaimed. One group thought that it
was too harsh and created a new "Criminal Code for Kids". Others said
it was too lenient and allowed young people to avoid responsibility for their
Little has changed in that regard, despite amendments to the YOA over
the past 15 years. The criticism continues from both sides with many looking
back almost nostalgically to the time of the Juvenile Delinquents Act. In this
web page, I propose to examine that earlier Act, and then go on to discuss
various aspects of the YOA. Needless to say, emphasis will be placed on those
areas that have generated criticism or controversy. Comments will also be made
about the new Youth Criminal Justice Act, which was proclaimed in force on April
Readers should be cautioned that the YOA/YCJA is complicated and cannot be explained fully in the space
available here. This is intended to provide general information only and should
not be construed as formal legal advice. It should also be noted that I am
referring to the law as it exists in the Province of Ontario in Canada. Anyone
who has been charged with an offence or who requires further information for any
reason should consult a lawyer directly. As I stated above the following is
intended to provide general information only and not to replace formal legal
advice from a lawyer retained to consider your particular case.
TABLE OF CONTENTS
JUVENILE DELINQUENTS ACT
The JDA was a mixture of both criminal law and child welfare ("child
protection" in some provinces) law. It was a reaction to the perceived
harshness of earlier laws that treated children who broke the law just like
During the 17th and 18th centuries, the fundamental aim in
criminal jurisprudence was not reformation but punishment. This applied equally
to children and there were numerous reported decisions about young children who
were hanged. By the late 19th century, reformers, who were incensed by the
harshness of this, clamored for change. They sought to protect and redeem those
who they saw to be the victims of vicious environments, unfortunate heredity and
cruel treatment at the hands of parents and employers. Juvenile court reform was
only a part of a larger social movement to clear slum tenements, to enact and
enforce humane factory laws, to ameliorate prison conditions and save future
generations from misery, pauperism and crime. As a result of the work of these
reformers, legislators introduced laws, which would treat young criminals by
The JDA was one of these laws and its very language illustrates
Young people were referred to as children. They committed
delinquencies rather than offences, and they were then called juvenile
delinquents rather than criminals or offenders. A young person who ran afoul of
the law was to be "dealt with, not as an offender, but as one in a
condition of delinquency and therefor requiring help and guidance and proper
supervision". The Act stated further that " the care and custody and
discipline of a juvenile delinquent shall approximate as nearly as may be that
which would given by his parents, and that as far as practicable every juvenile
delinquent shall be treated, not as a criminal, but as a misdirected and
misguided child, and one needing aid, encouragement, help and assistance".
Similarly, juveniles were not convicted of offences. They were
"Adjudged" to have committed a delinquency or to be a juvenile
delinquent. They were then dealt with, rather than sentenced. At that point they
might be committed to an industrial school (rather than imprisoned or sent to
jail), or committed to the care and custody of a probation officer (rather than
simply being placed on probation).
In some cases, these distinctions were quite
appropriate. Unlike the YOA, which allows young people to be prosecuted only for
crimes, the JDA included that and more. For example, the violation of any
provincial statute or of any municipal by-law could lead to a finding of
delinquency. Truancy constituted a delinquency. So did "sexual immorality
or any similar form of vice". Rather than dealing only with criminal
offences, the JDA also addressed child welfare (child protection) issues. This
was reflected in the sentencing section as well. This permitted a juvenile court
judge to "commit the child to the charge of any children's aid
society" where the child might then be dealt with under the provincial
child welfare law.
Since proceedings under the JDA were not really
"criminal" in nature, Juvenile Court trials were allowed to be
"as informal as the circumstances would permit". In addition, no
proceedings were to be set aside "because of any informality or
irregularity where it appeared that the disposition of the case was in the best
interests of the child".
These provisions allowed the rules of evidence to
be relaxed in Juvenile Court, and young people were often deprived of rights
that would have been observed in the case of an adult charged with the same
offence. This situation was radically altered when the YOA became the law in
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GENERAL PRINCIPLES - YOUNG OFFENDERS ACT/YOUTH CRIMINAL
Under the YOA youths are prosecuted only for crimes. They are expected to be
responsible for their actions. After reaching their twelfth birthday, they are
called young persons and if they are found guilty of a crime, they are called
offenders, albeit young ones.
Some early critics of the YOA complained about
this, calling the act a Criminal Code for kids. They objected to the
"new" approach that abandoned the child welfare tenets of the JDA.
Declaration of Principle at the beginning of the YOA recognizes that the
prevention of crime, including that committed by young persons, is essential to
the long-term protection of society. Further to that, while young persons should
not always be held accountable to the same degree as adults, those "who
commit offences should nonetheless bear responsibility for their
contraventions". Young persons who commit offences are recognized as having
special needs and as requiring guidance and assistance, along with supervision,
discipline and control. The rehabilitation of young offenders is stressed as the
best way to provide for the protection of society. So, while giving
consideration to the state of dependency and level of development and maturity
possessed by any particular young offender, the YOA treats them all as being
responsible for their crimes.
While young people cannot be prosecuted for
non-criminal matters under the YOA, neither can "an order of custodyÉbe
used as a substitute for appropriate child protection, health and other social
measures" in cases where a young person has been found guilty of a criminal
Along with these new responsibilities, the YOA gave young people a
number of rights. Suddenly they had most of the rights, which adults had always
possessed, plus a few more that applied to them alone. These rights will be
discussed in more detail in a later chapter.
The Youth Criminal
Justice Act will not change the current situation in this regard. It too is
criminal law rather than child welfare legislation and trials under that Act
will also be conducted as criminal trials.
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The YOA only applies to those who are twelve years of age or older as of the
time that the offence is alleged to have occurred.
Any offender younger than
that is to be dealt with under provincial child welfare legislation. The
assumption there will be that any child who commits serious offences, or even
less serious ones if they occur on a regular basis, is not getting proper
guidance and supervision at home and should be subjected to some degree of
supervision by a Children's Aid Society. In the most serious cases, the child
may well be taken from the parent(s) and placed in foster care.
There are many
who disagree with this approach. They believe that 10 and 11 year-olds should be
covered by the YOA too.
We see very few 12 and 13 year-old offenders in Youth
Court. Presumably, there would be even fewer 10 and 11 year-old children if they
were also included.
The JDA did not specify a minimum age. The Criminal Code
however specified that no one under seven was to be prosecuted for a criminal
offence, and no person between seven and fourteen could be convicted
"unless he was competent to know the nature and consequences of his conduct
and to appreciate that it was wrong".
The JDA did prohibit committing
anyone under twelve years of age to an industrial school unless "an attempt
has been made to reform such child in his own home or in a foster home or in the
charge of a children's aid society" unless "the best interests of the
child and the welfare of the community require such commitment".
also be noted that the possible sentences permitted by the JDA included placing
a child in "a suitable family home or a foster home" or committing him
to the charge of a children's aid society". These options are presently
available under Ontario's child welfare law, the Child and Family Services Act.
Those who believe in a consistent approach throughout our laws should note that,
at present, the Criminal Code provides that a child under 14 years of age is
legally incapable of consenting to participation in any sexual acts. Many, in
fact, believe that the minimum age for this is too low. It can certainly be
argued that if a 13 year-old is neither mature enough nor responsible enough to
decide that, then an 11 year-old cannot be mature enough to be held legally
responsible for committing a crime.
It is unlikely that the debate about the
minimum age will not be resolved in the near future. Part of the problem is that
whatever age we choose, it is really an arbitrary decision. We need to have a
cut-off somewhere, and we simply cannot all agree on where that should be.
proposed new Youth Criminal Justice Act will not change the age of criminal
responsibility from 12.
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The YOA applies to those who have committed an offence before reaching their
eighteenth birthday. This has been the law in all provinces in Canada since
April 1, 1985. During the twelve months between April 2, 1984 and April 1, 1985
the age varied from province to province just like it did under the Juvenile
Under the JDA, one could be prosecuted as an adult in criminal
court after turning 16 in Ontario and five other provinces. At one point Alberta
prosecuted sixteen-year-old boys as adults but girls were juveniles until
turning 18. Eventually 16 became the operative age for both boys and girls. In
British Columbia, the age was 17. In Newfoundland it was also 17 under
provincial legislation. (A provincial statute providing for the establishment of
a juvenile court was in operation when Newfoundland became part of Canada, and
under the terms of union that Act remained in force.) One remained a juvenile
until turning 18 in Manitoba and Quebec.
When the JDA was law and 16 and 17
year-old offenders were prosecuted in adult courts in Ontario, they received
special treatment. The courts developed special sentencing rules, which were
peculiar to youthful offenders. These rules were incorporated to keep these
youths away from older, more experienced criminals in jail and thereby avoid
providing them with the wrong kind of education.
Much criticism of the YOA is
directed to the maximum age. Many believe that 16 and 17 year-old youths who
break the law should be treated as adults. It should be noted however that we do
not treat this group as adults for most other purposes.
One must be only 16 to
get a driver's license in Ontario, but the graduated license system in effect
here almost guarantees that one will be 18 before being fully licensed. In
addition, there has always been vocal support for the notion of raising the
minimum driving age. (Many European countries already have a higher minimum age
both for driving and for criminal responsibility.)
One must be 18 in order to
vote or to enter into binding contracts.
One must be 18 in order to commence or
defend a lawsuit without the assistance of a litigation guardian.
One must be 19
in order to buy alcohol or cigarettes.
Clearly we do not believe that 17
year-olds are either mature enough or responsible enough to be treated as adults
in these areas. Neither should most of them be treated the same as adults in the
criminal courts. Admittedly there are some occasions where the maturity of the
offender and the severity of the offence committed combine to justify treating a
young person in the same way as we treat an adult. In those cases, the Crown may
apply to have that individual transferred to adult court.
The Youth Criminal
Justice Act does not change the upper age for young people involved
in criminal proceedings.
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TRANSFER TO ADULT COURT
There are some occasions where the maturity of the offender and the severity
of the offence committed combine to justify treating a young person in the same
way as we treat an adult. In those cases, the Crown may apply to have that
individual transferred to adult court.
Under the Juvenile Delinquents Act,
anyone who was 14 years of age or older and was charged with an indictable
offence could be transferred to adult court only in exceptional circumstances.
The JDA itself limited transfers to circumstances where "the good of the
child and the interest of the community demand it". The Ontario Court of
Appeal interpreted this to mean that a transfer should be ordered only where the
crime was of a most serious nature and the child and his record supported no
other solution. Unless the Crown met this rather tough onus, the case proceeded
in Juvenile Court. Needless to say, few cases were transferred, especially in
Ontario where 16 and 17 year olds were considered to be adults under that Act.
Transfers were somewhat more common in provinces where 16 and 17 year olds were
generally treated as juveniles.
Little changed at first following enactment of
the Young Offenders Act. However, over time the rules were relaxed to make it
easier to transfer young people to adult court. Now, while there is a burden on
the Crown to persuade the court that transfer to ordinary court is appropriate,
the onus is not regarded as a heavy one. The question is whether the judge is
satisfied, after weighing and balancing all the relevant considerations that the
charges should be dealt with in adult court. In addition, 16 and 17 year olds
charged with murder, attempt murder, manslaughter or aggravated sexual assault
are presumed to be dealt with in adult court unless the young person satisfies
the youth court judge that the case should proceed in youth court. This shift in
onus means that many more, if not most, of these cases are dealt with in adult
The new Youth Criminal Justice Act could change the law even more. It
allows for a youth court judge to impose an adult sentence on a young person
rather than transfer him to adult court.
It lowers the age for youths who are
presumed to receive an adult sentence for serious offences (murder, attempt
murder, manslaughter and aggravated sexual assault) so as to include 14 and 15
It expands the list of presumptive offences to include a new category
of offenders who show a pattern of serious violent behaviour. This has been
called the "three strike rule" in that the third time a young person
is convicted of a serious violent offence, he is presumed to be given an adult
sentence. Unfortunately this rule is unduly complicated. It is not clear what
constitutes a serious violent offence. In addition, the court has to go through
an extra procedure to have a judge rule on each case, including strikes one and
two. Finally, the Crown has a discretion whether to even ask that this label be
applied. This could therefor become another item to be plea-bargained away in
certain cases. I do not think that these provisions will succeed in making it
easier to punish young offenders with adult sentences. On the contrary, it
appears that they will be just as difficult to apply as the existing law.
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ALTERNATIVE MEASURES / EXTRAJUDICIAL MEASURES
Diversion and alternative measures are becoming used much more frequently for
people who are caught committing minor criminal offences but the programs are
not well understood by most people.
Diversion refers to a program that attempts
to divert minor charges out of the formal court process and deal with them more
informally within the community. Alternative measures is the name used for
diversion under the Young Offenders Act.
Why should we bother with these
programs at all? Can't the courts deal with these cases?
The simple answer is
The courts cannot handle all of these more minor matters in a
cost-efficient way. Also, studies have shown that a large majority (more than 75
per cent) of first offenders do not come back into the criminal justice system
no matter how they are dealt with. Diversion then, is an attempt to deal with
these cases in a cost-effective manner, allowing the offenders an opportunity to
avoid a criminal record while still insuring the public is protected against
What is diversion? Years ago, it was limited to a police officer
giving an offender a stern lecture and letting them go with a warning not to
offend again. Now, diversion will vary depending on an offender's age and the
offence charged. One thing that all programs have in common is the requirement
that there be sufficient evidence to proceed with prosecution of the offence,
and that the offender accept responsibility, in writing, for the offence. With
young offenders, the parents are always involved.
Halton Regional Police run a
Youth Justice Program where young offenders are diverted out of the court
system. This not only reduces the workload in court, but it also reduces police
time spent processing and investigating offenders.
Depending upon the
seriousness of the offence, sanctions may range from a formal caution to
participation in a three-month contract with terms specific to the offence and
to the young person. This can be similar to being on probation and may include a
curfew, restitution, a research paper or community service work. Failure to live
up to the contract terms may result in the youth being charged with the original
There is also an Alternative Measures Program for young people run
through the court itself. Applicants are screened and must be approved.
Restitution and an apology are priorities here. Other possible sanctions include
community service, charitable donations or an essay on what effects the offence
has had, not only on the offender but also on everyone else in the community.
This program can take anywhere from one to three months, depending on the case.
For anyone (young person or adult) charged with possession of a small amount of
marihuana, there is a separate program that requires that those offenders who
are approved by the drug prosecutor must find a community service placement and
perform anywhere from 20-l00 hours of volunteer work.
The purpose of all of
these programs is to provide an effective alternative to the court process.
While formal charges are withdrawn against all who complete their program, this
not a way for an offender to get off. In fact, in some cases, the diversion
sanction may be more onerous than that imposed in court. In any event, for
practical reasons, these programs will be with us for some time yet.
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The Young Offenders Act provides that parents have responsibility for the
care of their children and that young persons should only be removed from the
care of the home when necessary.
Parents are recognized as having an important
role to play in youth court proceedings. They must be informed of any charges
against their children and notified of the date and place of the court hearing.
They are entitled to be present in court and to advise the judge of their
concerns. Most judges will inquire whether any parents are present before
dealing with a matter in court. In addition, they will usually seek input from
the parents before sentencing a youth.
Parents are not, however responsible for
the illegal acts of their children. Responsibility for illegal conduct is placed
on the young offender alone.
This marked a change from the Juvenile Delinquents
Act which allowed a parent to be ordered to pay a fine, or damages or costs if
the court was "satisfied that the parent or guardian had conduced to the
commission of the offence by neglecting to exercise due care of the child or
otherwise". In addition, any adult could be charged with contributing to
the delinquency of a juvenile.
Some people complained that the lack of legal
liability under the Young Offenders Act allowed some parents to abdicate
responsibility for the acts of their children. This, in turn, set a bad example
for the children themselves who never developed their own sense of
Recently, the Ontario government has reintroduced the concept of
financial responsibility on the part of parents for property loss or damage
intentionally caused by their children who are under 18 years of age. The
Parental Responsibility Act came into effect on August 15, 2000 and allows those
whose property has been intentionally damaged, destroyed or stolen by minors to
bring a claim for up to $10,000 against parents in Small Claims Court. This
amount includes all costs incurred by a victim such as lost wages or profits,
car rental expenses, or any other expenses arising from the property damage or
This law should make it easier for victims to sue parents in Small Claims
Court. Until now, most of the onus has been placed on the victims of crime to
prove their case in court. Under the Parental Responsibility Act, victims need
prove only that the defendants are the parents of the child who caused a
specific amount of property damage or loss. In cases where the young offender
has been found guilty of that property offence in Youth Court, the law also
makes it easier for victims to use documents from that court to help prove their
The burden then shifts to the young offender's parents to establish why
they should not be found liable for their child's property offences. To do this,
they must prove that the loss or damage was not caused intentionally, or that
they exercised reasonable supervision of their child and made reasonable efforts
to prevent the damage from happening. In deciding whether parents exercised
reasonable supervision, judges are required to consider numerous factors
including the age of the child, his mental and physical capacity, any
psychological disorders and prior conduct. He or she should also consider
whether the youth was under direct supervision by the parent at the time, or if
other reasonable arrangements had been made for supervision.
This law is
supposed to be one of a series of actions taken by the Ontario government to
reinforce such values as respect and responsibility in society. We can certainly
hope that it will accomplish those goals. In the meantime, we will have to wait
and see how the law works out in practice. For now, it is too early to say since
no cases have yet made their way through the courts.
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The general principles of sentencing are pretty much the same for both adults
and young people. There are certain rules, which are different when young people
are involved. The maximum sentences are definitely different. Finally, youth
sentences are served in different facilities. We will look at each of these
issues separately in this section.
A. General Principles of sentencing
protection of society is the primary goal of the court when sentencing either an
adult or a young offender. This of course would best be accomplished if that
offender, and others like him, stopped committing crimes. The sentencing judge's
task is to find a way to make this happen.
Most first offenders do not come back
to court. Many learn their lesson simply by being charged and brought into the
criminal justice system. The judge doesn't have to do much, if anything with
this group. It is certainly not necessary to send them to jail. A fine or
probation will usually be more than enough.
It is the repeat offenders who make
the judge's job a difficult one. Should he try to rehabilitate them or to deter
them or should he simply separate them from society? In Youth Court,
rehabilitation takes priority. In reaching the final decision however, the
sentencing judge must take into account the particular details and circumstances
of both the crime and the criminal, compare them to previous decisions, consider
the relevant principles and then impose the punishment that is appropriate for
that particular case.
Some offenders have specific problems that need to be
addressed if they are to avoid future crimes. Some abuse alcohol or other drugs.
Others have emotional or psychological problems. Many simply lack basic life
skills and are unable to cope in modern society. There is much that can be done
to help rehabilitate these people. Alcoholics can be placed in programs either
in jail or as part of a probation order. They can be ordered not to drink and
encouraged to attend AA. Probation officers can provide supervision and support
within the community. Similarly, counselling can be provided for those with
emotional or psychological problems and educational programs may be made
available to those lacking sufficient life skills. None of this however,
guarantees success because all of these programs will be useless unless the
offender chooses to take advantage of them. Many do so willingly. Others do not.
The judge may try to deter an offender by imposing a sentence harsh enough that
it exceeds any advantages that came from his offence. The idea is that before
committing another crime the offender will weigh that penalty against any
benefits and choose not to reoffend. In theory, others should also be deterred
by such sentences. In practice, however not all offenders consider the potential
consequences of their acts. If they did, our courts would not be so busy.
Potential deterrent dispositions for young people include secure custody (the
youth version of jail), open custody (generally served in a group home), fines,
restrictive probation orders and community service orders.
Those offenders who
will not be rehabilitated or deterred may simply be separated from society by
putting them in custody. They may not learn anything from this but they cannot
commit further offences while they are there. In all cases the sentence must be
proportionate to the gravity of the offence and the degree of responsibility of
the offender. The judge must consider certain aggravating or mitigating
circumstances. Finally, the sentence should be similar to sentences imposed on
similar offenders for similar offences committed in similar circumstances.
Criminal Code requires judges to consider "all available sanctions other
than imprisonment that are reasonable in the circumstances". In addition,
"an offender should not be deprived of liberty, if less restrictive
sanctions may be appropriate". Recently Parliament introduced conditional
sentences, allowing some offenders to serve their jail sentences in the
community. These are not available under the YOA but it also contains provisions
requiring judges to consider all other alternatives before resorting to custody.
The new Youth Criminal Justice Act goes even further in this direction.
in most cases, jail is to be the sentence of last resort for adults and young
Some crimes however are so odious that denunciation becomes the
primary goal in sentencing. The sentence then is intended to express society's
abhorrence for that particular crime.
While these general principles are
applicable to both adult and young offenders, there are differences between
those two groups. One difference is in the maximum sentences, which may be
imposed on young people
B. Maximum sentences under the YOA / YCJA
The YOA says that a
young person cannot receive a sentence that is longer than the maximum sentence
that could be given to an adult for the same offence. That does not mean that a
youth cannot get a longer sentence than an adult. Few offenders (adult or youth)
are given maximum sentences and a youth with a bad record could well get a
longer sentence than an adult first offender.
In addition, adults are
automatically entitled to remission (credit for good behaviour) reducing their
sentence by one-third. They are also eligible for parole after serving one-third
and an application to the parole board is automatically processed on any
sentence of six months or more. Young offenders do not get remission and they
are not eligible for parole. To reduce a youth sentence the young offender must
apply for a review of disposition by the judge who originally sentenced him. A
review is not mandatory until the young offender has been in custody for at
least six months.
The maximum sentences under the YOA generally exceed the
sentences actually given to adults even without considering remission. So let's
look at the maximum sentences for young offenders.
When the YOA first
became law, the maximum youth sentence for any murder was three years. It became
easier to transfer such serious cases to adult court where a youth faced exactly
the same penalties as an adult. These provisions received much public criticism
and over time they too were amended.
At present, a youth who commits
first-degree murder can receive a youth sentence of up to 10 years. Six years is
spent in custody with the remainder spent under conditional supervision in the
community. Before his release into the community, the young person must be
brought back before the sentencing judge who will then set the conditions of
If, at that time, the judge is satisfied that the youth is likely to
cause serious harm if released, the judge can order he serve the whole sentence
Most first-degree murder cases are transferred to adult court. There
the sentence for a young person is life imprisonment with no parole for at least
10 years. An adult convicted of that offence would have to wait 25 years before
being eligible for parole.
The maximum youth sentence for second-degree murder
is seven years with four of those in custody and the remainder under conditional
supervision in the community. As in first-degree murder cases, the sentencing
judge must review the case and set the conditions before a youth is released
into the community. If the judge is satisfied that the youth is likely to cause
serious harm if released, the judge can order he serve the whole sentence in
If a young offender breaches any of the conditions of his release, he
can be returned to custody pending a hearing before a judge. The judge can then
either release the young offender or order that he remain in custody for a
further period, not to exceed the remainder of his disposition.
second-degree murder cases are also transferred to adult court. Youths guilty of
that offence receive an automatic life sentence. The judge decides the parole
eligibility minimum, which could be anywhere from five to seven years. An adult
convicted of second-degree murder would have to serve between ten and 25 years
before being eligible for parole.
The increased maximum penalty for murder has
required certain procedural changes in the Youth Court. Now, young people tried
for murder in Youth Court are entitled to have a preliminary hearing and then be
tried by a jury. (The Criminal Code and the Charter of Rights both guarantee
everyone the right to trial by jury when the maximum sentence is 5 years or
more.) When the maximum sentence was only three years, a murder trial in Youth
Court was before a judge without a jury and there was no preliminary hearing.
Under the Juvenile Delinquents Act, the maximum sentence for a youth tried in
Juvenile Court would have been committal to a training school until his
twenty-first birthday. That maximum was the same for both first and
second-degree murder. When a juvenile was transferred to regular court, however,
he became subject to the same penalties as an adult. At one time this included
For example, as of June 14, 1959, Stephen Truscott was an
ordinary 14-year-old, living anonymously in Clinton, Ontario. That status
changed the next day, when he was accused of raping and murdering his
12-year-old classmate, Lynn Harper. His case was transferred to adult court,
where he was tried and convicted. He then became the youngest person ever to be
sentenced to hang in Canada. All this happened within a few months of Lynn
Truscott's sentence was later commuted to one of life
imprisonment. He served ten years in youth facilities and at Millhaven
Penitentiary before he was paroled. He then changed his name and returned to an
anonymous life, this time in Guelph. That anonymity ended just recently when he
appeared on CBC's The Fifth Estate to again declare his innocence.
Truscott was exceptional in that his case became well known, not only at that
time, but also to later generations. Most of the few young people who have
committed murder have remained unknown to anyone outside their own community.
(ii) Offences punishable by life imprisonment
A young person who commits an
offence, other than murder, for which an adult could be sentenced to life
imprisonment, faces a maximum sentence of three years. This sentence can include
secure custody, open custody, probation or any combination thereof. The total
combined sentence cannot however exceed three years.
The offences which fall
into this category include attempt murder, conspiracy to commit murder,
accessory after the fact to murder, manslaughter, criminal negligence causing
death, aggravated sexual assault, kidnapping, robbery, and break and enter a
Where a young person is transferred to regular court for one of these
offences, he becomes liable to exactly the same penalties as an adult.
other indictable offences
The maximum sentence for these offences is two years
of secure custody, open custody, probation, or any combination thereof. If there
are multiple such offences, the maximum combined sentence becomes three years.
Again, where a young person is transferred to regular court for one of these
offences, he becomes liable to exactly the same penalties as an adult.
young person commits a further offence while serving a previous disposition, the
sentence for the new offence may be served consecutively to the previous
disposition and the combined duration of these sentences may exceed the maximums
that would otherwise apply.
(iv) Summary conviction offences
In cases where the
Crown Attorney elects to proceed summarily, the maximum sentence will range from
6 months to 18 months. The maximum here is exactly the same as for an adult.
young person may actually face a longer maximum sentence for these offences
because the Crown will often elect to proceed summarily against an adult in
order to avoid a preliminary hearing and a jury trial. A young person does not
have a right to these, even when the Crown proceeds by indictment on any charge
other than murder. There is therefore less pressure on the Crown to proceed
summarily against young people in Youth Court.
Summary conviction matters cannot
be transferred to adult court.
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9. RIGHTS OF YOUNG PERSONS
In general young people have the same rights as everyone else. There are some
exceptions to this but by and large an examination of the rights of young people
must start with a review of the rights possessed by all of us.
"Everyone has the right not to be arbitrarily detained or imprisoned."
This section of the Charter of Rights means that police cannot just stop someone
without a valid legal reason. Usually the officer must have reasonable cause,
based on objectively discernible facts, to suspect that the detainee has been
involved in some illegal activity. Police are, however, authorized to stop motor
vehicles and question their drivers for many different reasons. These laws have
been held by the courts to be reasonable limits on a driver's rights.
"Everyone has the right on arrest or detention to be informed promptly of
the reasons therefor and to retain and instruct counsel without delay and to be
informed of that right." In other words, the police officer must tell you
why you have been stopped. In addition, if the officer is proceeding beyond a
general investigation, he or she must inform you of your right to speak to a
lawyer. You must also be informed of the availability of a 24-hour duty counsel
who can provide telephone advice at any time to anyone who cannot reach his or
her own lawyer.
If you indicate that you want to speak to a lawyer, the police
are then obligated to provide you with a reasonable opportunity to do so. In
addition, they must refrain from attempting to obtain evidence from you until
you have actually spoken to a lawyer. Until then, they cannot ask you to answer
questions or to take any tests including a Breathalyzer test. They can, however,
require you to take a roadside breath test under certain circumstances.
not limited to just one phone call. You are entitled to a reasonable opportunity
to speak to the lawyer of your choice. In some cases, however, you may have to
settle for duty counsel. The most common reason for this will be the requirement
that breath tests be taken within two hours of the driving.
You should always
assume that there is a reason why the police have told you that you have the
right to talk to a lawyer. So you should talk to one whenever you are given the
Everyone has the right to remain silent and not incriminate himself. The
existence of this right may well be the most important information that a lawyer
will give you following your arrest. It is then up to you to follow this advice
and to not answer police questions that are put to you later. While you have the
right to remain silent, they still have the right to ask their questions and you
must decide whether to answer or not.
The right to remain silent does not
include a right to lie. Lying to the police could lead to a separate charge of
If police question a person without advising him of his rights, any
statements obtained from him will likely be excluded from evidence in any trial.
In addition, the statement will not be admitted unless the prosecution can prove
it was made voluntarily. It must be shown that there were neither threats nor
inducements made in order to obtain the statement.
There are further rules
governing the taking of statements from young persons who are under 18 years of
age. The Young Offenders Act requires police to tell a young person that he or
she is under no obligation to give a statement and that any statement given by
him may be used as evidence in court proceedings. The young person has the right
to consult counsel, a parent or some other adult. In fact, any statement
obtained from a young person is required to be made in the presence of the adult
consulted unless the young person desires otherwise. This right can only be
waived in writing or on video. The current practice of Halton Police is to have
a waiver signed during a videotaped interview.
These extra safeguards for young
people are apparently based on a belief that young people cannot necessarily
make the same decisions as adults. Certainly, at home, many parents press their
children to confess to such a degree that it may seem better for the child to
confess to something whether he has done it or not ("I will still love you
no matter what you've done but don't tell me you didn't do it"). This
attitude can carry over to the police station.
I know many police officers who
do not subscribe to the above philosophy. I also know a large percentage of my
youth clients choose to waive their rights without speaking to either a parent
or lawyer. Most then go on to make some sort of statement to the police. It has
been my experience that adults are much more likely to exercise their rights to
speak to counsel and to remain silent.
The new Youth Criminal Justice Act will allow a judge to admit a statement despite the absence of a proper
waiver, if the judge is satisfied that the admission of the statement will not
bring the administration of justice into disrepute. We will have to wait and see
how the judges will interpret that provision once it becomes law.
will likely satisfy neither side of the debate. Those who believe that there are
valid reasons for the safeguards requiring signed or videotaped waivers will
still argue that the police should be made to follow the rules and there should
be no exceptions to that. Otherwise the rules become uncertain and ultimately
If, on the other hand, the protection is not important, then we do
not need special safeguards at all and they should simply be removed. Both the
current and proposed law provides that a youth who pretends to be 18 or older
when dealing with the police will not be entitled to these special rights. The
law does not allow one to benefit from a lie in these circumstances.
Young people may have special rights when they are being questioned by
police, but they are in no different position than adults when it comes to
police searches. In fact, in some circumstances, such as searches in schools,
they may have fewer rights than adults.
"Everyone has the right to be
secure against unreasonable search and seizure." This right pretty well
disappears once you have been arrested. Police officers have the power to search
a person as an incident to a lawful arrest and to seize anything in his
possession or immediate surroundings to guarantee the safety of police and the
accused, to prevent his escape, or to provide evidence against him. This may, in
certain circumstances, allow them to search a motor vehicle but a warrant will
probably be required before searching the arrested person's residence.
Supreme Court of Canada considered the question of school searches in a case
from Nova Scotia. There, a vice principal had heard from students the
13-year-old accused was selling drugs in the school and would be carrying drugs
at a school dance. The vice-principal called the R.C.M.P. to attend and then
asked the accused to accompany him to his office.
He then questioned the boy
until the police officer arrived. The officer advised the boy the vice-principal
was going to search him. A plastic bag containing a small amount of marihuana
was found and the boy was charged with possession.
The Supreme Court assumed for
purposes of the case that schools constitute part of government and that the
vice-principal was acting as an agent of the police. Accordingly, the Charter of
Rights applied to his actions. They found however, the search was not
unreasonable and the marihuana was not excluded from evidence during the trial.
The Charter of Rights provides that "everyone has the right to be secure
against unreasonable search and seizure". What is considered to be
unreasonable in a particular case will be determined largely by the degree of
privacy that any individual might reasonably expect to have in those
While a student does have a reasonable expectation of privacy
over his person, a student's reasonable expectation of privacy is significantly
diminished in a school setting. While warrantless searches are normally
considered to be unreasonable, a more flexible and lenient approach is required
A school authority must have reasonable grounds to believe that
there has been a breach of school regulations or discipline, and that a search
of a student will uncover evidence of that infraction. The reasonable grounds
may include information received from one or more credible students or from the
teacher or principal's own observations.
As a result of this decision, students
in school have lost a number of rights that they enjoy when not in school and a
student's expectation of privacy is greatly reduced.
At the same time, teachers
and principals have been given a great deal of deference regarding the
information they act on, its reasonableness and the credibility of any source.
They now have broad powers to search both students and their lockers.
decision should not, however, be taken as authority to strip-search students. As
a teacher and vice principal at a high school in southwestern Ontario learned
recently, students still have some expectation of privacy, even in a school
setting and such invasive proceedings as these will be seen to be an
unreasonable invasion of the student's rights.
The Supreme Court noted that
schools have a duty to foster the respect of their students for the
constitutional rights of all members of society and that learning respect for
rights should be part of the education of students. Further, values are best
taught by example and those values may be undermined if students' rights are
ignored by those in authority.
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10. RECORDS AND IDENTIFICATION OF YOUNG PEOPLE
Many myths abound about the Young Offenders Act. One of the most common myths
is that a Youth Court record is destroyed when the young person turns 18. Like
most myths, this is not correct. So let's take a look at what is reality here.
Young people who are found guilty of a criminal offence are treated differently.
First of all, they are not convicted but merely found guilty. This distinction
may not appear to be important, but it allows a young person to answer
"no" when asked if he or she has been "convicted" of a
criminal offence. In most circumstances, that is all that can be asked.
disposition imposed on a young person has been completed, he is deemed not to
have even been found guilty of the offence except for certain purposes involving
the courts, the police or a parole board. In other words, once the fine is paid
or the custody and probation is over, the young person is no longer guilty of an
offence for most purposes.
The record itself is to be destroyed if the young
person stays out of trouble for 3 years after completing the sentence for a
summary conviction offence (a less serious offence) or after 5 years in the case
of an indictable offence (the more serious ones). If further Youth Court
offences are committed during this period, the date for destruction is pushed
back to three or five years depending on the seriousness of the new offence)
following the last matter. If the young person becomes an adult and commits a
further crime during this period, the rules applicable to adult records will
apply to all offences. This would cause the record to remain for the rest of
that person's life unless a pardon was sought and obtained.
Records relating to
a finding of guilt for first degree murder, second degree murder, attempted
murder, manslaughter and aggravated sexual assault may be kept indefinitely in a
special records repository. The fingerprints of those guilty of those offences
may similarly be kept indefinitely in a special fingerprints repository.
records of young people who have been transferred to adult court are treated as
Not everyone may access Youth Court records. These may be
released only to those specified under the Young Offenders Act. For example, the
YOA specifically provides that a record may be made available for inspection to
the victim of the offence to which the record relates. It is an offence to
disclose these records to anyone not listed in the YOA.
It is also an offence to
identify a young person as having been charged with an offence. A court order
may be obtained where publication of the name will assist the police in
apprehending a dangerous individual. Similarly school officials may be informed
of a young person's identity to ensure the safety of staff and students. The
court may also authorize disclosure to others where the young person poses a
risk of serious harm to those persons and the disclosure of the information is
relevant to the avoidance of that risk.
Critics regularly complain about the
provision for anonymity under the Young Offenders Act. They feel that it allows
young offenders to avoid public acceptance responsibility for their crimes.
Supporters of the YOA counter that a young person should not be publicly branded
as a criminal for a youthful indiscretion. Personally, I am not a die-hard
supporter of not publishing offenders' names. I am uncertain as to the benefits
that flow from it. However, we should not delude ourselves into thinking that we
would be much safer if we, the public, could all be told the names of young
offenders. Usually, those closest to the case, that is, those in the young
person's own community, know who the young person is without his name ever being
publicized in the media. In addition, adult offenders go through the courts,
serve their sentences and are released. Some of them may also offend again. The
news media could publish the names of these offenders, but in most cases they
don't. They don't because it isn't news. It is an everyday event. As a result,
these people go through the system and return anonymously to the community
without anything near the outrage expressed regarding young offenders.
Offenders Act also protects the identities of young victims and witnesses. There
is, quite properly, no disagreement with these provisions.
The new Youth
Criminal Justice Act makes very few changes in this area. It would appear that
under the new legislation, a young person may be identified if he is charged
with a presumptive offence, whether he ends up receiving an adult sentence or a
youth sentence. In addition a young person may after turning 18 publish or cause
to be published information that would identify him as having been dealt with
under the act whether as an accused, a witness or a victim. Other than these
provisions, the law will remain pretty much the same.
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11. WHAT SHOULD YOU DO IF YOU OR YOUR CHILD HAS TO GO TO
1. Take the matter seriously. Depending on circumstances, this could follow
you for the rest of your life if you are found guilty. The Canadian Police
Information Computer (CPIC) could maintain records of it for from a year to a
lifetime. As I have described above, a youth record does not automatically
disappear when you turn 18.
2. See a lawyer. The law is complex and you need competent representation.
Find out your rights and determine whether you have a viable defence. Only a
lawyer can tell you this. Speak to one who can properly handle your case. If you
decide to fight the charge, hire a lawyer to represent you in court. Criminal
charges against either adults or young people are too complicated for you to
defend on your own; no matter how much information you obtain ahead of time. You
should also remember that all lawyers are not created equal. The practice of law
has become more and more specialized. The lawyer who did your house deal cannot
be expected to also keep up on the latest developments in criminal law and the
YOA/YCJA. You should, however feel free to ask previous lawyers for their suggestion
as to whom you might retain to defend you.
3. Your choice of lawyer should not be based on the amount of the fee alone.
The Province has almost unlimited resources when it comes to your case. You need
to hire a qualified lawyer who has experience in defending these cases and pay
him a fee that will allow him to put sufficient time and effort into your case
to counter the prosecution. Lawyers must earn enough in the time they spend on
your case in order to cover their expenses and make a living wage. If you go too
low, your lawyer will not be able to put in the time necessary to protect you.
Look for a reasonable, predictable fee, not the lowest. Often, you do get just
what you pay for. Do discuss fees before hiring a lawyer. In my practice, I will
tell you what your case will cost, usually at the first meeting.
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