Détermination de la peine pour les jeunes
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General Principles
The YCJA creates a separate legal system for youths. The reason for this is that young people are particularly vulnerable, less mature, and have a reduced capacity for moral judgment. Accordingly, they are presumed to have a diminished moral blameworthiness and culpability.[1] Part IV of the YCJA (s. 41 to 82) addresses the sentencing of young offenders.
- Relationship with the Criminal Code
The relationship of the YCJA and the Criminal Code is addressed in ss. 140 to 142. The Criminal Code applies equally "except to the extent that it is inconsistent with or excluded by this Act" (s. 140).
Part XXVII of the Code regarding the procedure for summary conviction offences applies to prosecutions under the YCJA except where inconsistent with the YCJA.[2] Indictable offences are to be prosecuted under the procedure of indictable offences.[3]
The consequence of this is that the sentencing options are significantly different from the adult options of sentence as the YCJA explicitly outlines the available sentences for all young offenders.[4]
- Legislative Interpretation
The YCJA should be interpreted "purposively" and through a "lens of the applicable youth criminal justice legislation."[5]
- Part XXII re Sentencing Does Not Apply
- Application de la partie XXIII du Code criminel [Pt. XXIII – Détermination de la peine (art. 716 à 751.1)]
50 (1) Sous réserve de l’article 74 (application du Code criminel aux peines applicables aux adultes), la partie XXIII (détermination de la peine) du Code criminel ne s’applique pas aux poursuites intentées sous le régime de la présente loi; toutefois, l’alinéa 718.2e) (principe de détermination de la peine des délinquants autochtones), les articles 722 (déclaration de la victime), 722.1 (copie de la déclaration) et 722.2 (enquête par le tribunal), le paragraphe 730(2) (maintien en vigueur de la sommation) et les articles 748 (pardons et remises), 748.1 (remise par le gouverneur en conseil) et 749 (prérogative royale) de cette loi s’appliquent avec les adaptations nécessaires.
- Non-application de l’art. 787 du Code criminel
(2) L’article 787 (peine générale) du Code criminel ne s’applique pas aux poursuites intentées sous le régime de la présente loi.
[annotation(s) ajoutée(s)]
- ↑
R c B(D), 2008 SCC 25 (CanLII), [2008] SCC 25, par Abella J, au para 45 ("...the approach to the sentencing of young persons is animated by the principle that there is a presumption of diminished moral culpability to which they are entitled.")
- ↑
see s. 142
- ↑ s. 142(2)
- ↑ see s. 42(2)
- ↑
R c FN (Re), 2000 SCC 35 (CanLII), [2000] 1 SCR 880, par Binnie J, aux paras 23 to 27
R c RC, 2005 SCC 61 (CanLII), [2005] 3 SCR 99, par Fish J, au para 45
Principles of Interpretation
Purpose and Principles of the YCJA
Jurisdiction
See Jurisdiction of the Courts
History
From 1908 to 1984 youth sentencing was governed by the Juvenile Delinquents Act. This Act was replaced by Young Offenders Act in 1984 and remained in force until 2003. Finally, in 2003 the Youth Criminal Justice Act was brought into force.
Protection of Identity
Under s. 110 and 129 of the YCJA, any information that would identify an offender cannot be published or released to the public at any time. Likewise, under s. 111 and 129, any information that would identify a victim or witness who is a young person cannot be published or released to the public at any time.
If either s. 110 or 111 is violated, the offending person may be liable under s. 138 either on summary conviction or for an indictable offence with a maximum penalty of two years in prison.
Procedure
Where a young person pleads guilty, the judge must be satisfied under s. 36(1) that "the facts support the charge" before the judge can find the accused guilty.
Where the facts do not support the charge, then under s. 36(2), the judge must set the matter down for trial.
- Recommendation Conference
- Peines spécifiques
- Groupe consultatif
41 Le tribunal pour adolescents peut constituer ou faire constituer un groupe consultatif en vertu de l’article 19 et lui soumettre le cas d’un adolescent déclaré coupable d’une infraction pour qu’il lui présente des recommandations sur la peine spécifique à imposer.
- Considerations Before Passing Sentence
- Éléments à prendre en compte
42 (1) Le tribunal pour adolescents tient compte, avant d’imposer une peine spécifique, des recommandations visées à l’article 41 et du rapport prédécisionnel qu’il aura exigés, des observations faites à l’instance par les parties, leurs représentants ou avocats et par les père et mère de l’adolescent et de tous éléments d’information pertinents qui lui ont été présentés.
[omis (2), (3), (4), (5), (6), (7), (8), (9) and (10), (11), (12), (13), (14), (15), (16) and (17)]
2002, ch. 1, art. 422012, ch. 1, art. 1742019, ch. 25, art. 373
Youth Pre-Sentence Report
Extrajudicial Measures
See: Alternative Measures#Extrajudicial Measures Under the YCJA
Principles and Purpose of Sentencing
Factors of Sentencing
Available Dispositions
Remand Credit
A young offender should be given 1.5:1 credit for remand time.[1] However, the ultimate decision on treating pre-sentence custody is discretionary, and can give no credit if appropriate in the circumstances.[2]
Section 38(3)(d) of the YCJA states that "In determining a youth sentence, the youth justice court shall take into account ... the time spent in detention as a result of the offence”. This requires that the judge reduce the potential maximum sentence by at least the number of actual days spent on remand.[3]
- ↑ R c JEO, 2013 SKCA 82 (CanLII), 417 Sask R 244, par Richards JA
- ↑
R c DS, 2008 ONCA 740 (CanLII), [2008] OJ No 4231, par Gillese JA, au para 26
R c DW, 2008 ONCA 268 (CanLII), 79 WCB (2d) 80, par curiam, au para 3
R c MW, 2017 ONCA 22 (CanLII), 346 CCC (3d) 319, par Epstein JA, au para 78
- ↑
R c TB, 2006 CanLII 4487 (ON CA), 206 CCC (3d) 405, par Lang JA, aux paras 19, 25
DS, supra
Adult Sentences
Ancillary Orders
It is worth noting that the language of the provisions relating to SOIRA indicates that it does not apply to young offenders. DNA orders however do apply in the same way that it does to adults.
Specific Offences
Homicide
- Imprisonment for Life
...
- Persons under eighteen
745.1 The sentence to be pronounced against a person who was under the age of eighteen at the time of the commission of the offence for which the person was convicted of first degree murder or second degree murder and who is to be sentenced to imprisonment for life shall be that the person be sentenced to imprisonment for life without eligibility for parole until the person has served
- (a) such period between five and seven years of the sentence as is specified by the judge presiding at the trial, or if no period is specified by the judge presiding at the trial, five years, in the case of a person who was under the age of sixteen at the time of the commission of the offence;
- (b) ten years, in the case of a person convicted of first degree murder who was sixteen or seventeen years of age at the time of the commission of the offence; and
- (c) seven years, in the case of a person convicted of second degree murder who was sixteen or seventeen years of age at the time of the commission of the offence.
1995, c. 22, ss. 6, 21.
Review of Sentences
A non-custody sentence can be reviewed after 6 months or earlier is granted leave by the court. (s. 59(1))
A custody sentence can be reviewed after 1 year.(s. 94)
Sentencing Digests
Misc YCJA Sentencing Provisions
- PART 4 Sentencing
- Purpose and Principles
- Committal to custody
39
[omis (1), (2), (3), (4), (5), (6), (7) and (8)]
- 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.
42
[omis (1) and (2)]
- Agreement of provincial director
(3) A youth justice court may make an order under paragraph (2)(l) or (m) only if the provincial director has determined that a program to enforce the order is available.
- Youth justice court statement
(4) When the youth justice court makes a custody and supervision order with respect to a young person under paragraph (2)(n), the court shall state the following with respect to that order:
- You are ordered to serve (state the number of days or months to be served) in custody, to be followed by (state one-half of the number of days or months stated above) to be served under supervision in the community subject to conditions.
If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well. You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well. The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.
- Deferred custody and supervision order
(5) The court may make a deferred custody and supervision order under paragraph (2)(p) if
- (a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and
- (b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.
- Application of sections 106 to 109
(6) Sections 106 to 109 (suspension of conditional supervision) apply to a breach of a deferred custody and supervision order made under paragraph (2)(p) as if the breach were a breach of an order for conditional supervision made under subsection 105(1) and, for the purposes of sections 106 to 109, supervision under a deferred custody and supervision order is deemed to be conditional supervision.
[omis (7)]
- Safeguard of rights
(8) Nothing in this section abrogates or derogates from the rights of a young person regarding consent to physical or mental health treatment or care.
(9) and (10) [Repealed, 2012, c. 1, s. 174]
- Inconsistency
(11) An order may not be made under paragraphs (2)(k) to (m) in respect of an offence for which a conditional discharge has been granted under paragraph (2)(c).
- Coming into force of youth sentence
(12) A youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies.
- Consecutive youth sentences
(13) Subject to subsections (15) and (16), a youth justice court that sentences a young person may direct that a sentence imposed on the young person under paragraph (2)(n), (o), (q) or (r) be served consecutively if the young person
- (a) is sentenced while under sentence for an offence under any of those paragraphs; or
- (b) is found guilty of more than one offence under any of those paragraphs.
- Duration of youth sentence for a single offence
(14) No youth sentence, other than an order made under paragraph (2)(j), (n), (o), (q) or (r), shall continue in force for more than two years. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combined duration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2)(j), (n), (o), (q) or (r) that exceeds two years.
- Duration of youth sentence for different offences
(15) Subject to subsection (16), if more than one youth sentence is imposed under this section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder.
- Duration of youth sentences made at different times
(16) If a youth sentence is imposed in respect of an offence committed by a young person after the commencement of, but before the completion of, any youth sentences imposed on the young person,
- (a) the duration of the sentence imposed in respect of the subsequent offence shall be determined in accordance with subsections (14) and (15);
- (b) the sentence may be served consecutively to the sentences imposed in respect of the previous offences; and
- (c) the combined duration of all the sentences may exceed three years and, if the offence is, or one of the previous offences was,
- (i) first degree murder within the meaning of section 231 of the Criminal Code, the continuous combined duration of the youth sentences may exceed ten years, or
- (ii) second degree murder within the meaning of section 231 of the Criminal Code, the continuous combined duration of the youth sentences may exceed seven years.
- Sentence continues when adult
(17) Subject to sections 89, 92 and 93 (provisions related to placement in adult facilities) of this Act and section 743.5 (transfer of jurisdiction) of the Criminal Code, a youth sentence imposed on a young person continues in effect in accordance with its terms after the young person becomes an adult.
2002, c. 1, s. 42; 2012, c. 1, s. 174.
- Where a fine or other payment is ordered
54 (1) The youth justice court shall, in imposing a fine under paragraph 42(2)(d) or in making an order under paragraph 42(2)(e) or (g), have regard to the present and future means of the young person to pay.
[omis (2) and (3)]
- Representations respecting orders under paragraphs 42(2)(e) to (h)
(4) In considering whether to make an order under any of paragraphs 42(2)(e) to (h), the youth justice court may consider any representations made by the person who would be compensated or to whom restitution or payment would be made.
- Notice of orders under paragraphs 42(2)(e) to (h)
(5) If the youth justice court makes an order under any of paragraphs 42(2)(e) to (h), it shall cause notice of the terms of the order to be given to the person who is to be compensated or to whom restitution or payment is to be made.
- Consent of person to be compensated
(6) No order may be made under paragraph 42(2)(h) unless the youth justice court has secured the consent of the person to be compensated.
- Orders under paragraph 42(2)(h), (i) or (m)
(7) No order may be made under paragraph 42(2)(h), (i) or (m) unless the youth justice court is satisfied that
- (a) the young person against whom the order is made is a suitable candidate for such an order; and
- (b) the order does not interfere with the normal hours of work or education of the young person.
- Duration of order for service
(8) No order may be made under paragraph 42(2)(h) or (i) to perform personal or community services unless those services can be completed in two hundred and forty hours or less and within twelve months after the date of the order.
- Community service order
(9) No order may be made under paragraph 42(2)(i) unless
- (a) the community service to be performed is part of a program that is approved by the provincial director; or
- (b) the youth justice court is satisfied that the person or organization for whom the community service is to be performed has agreed to its performance.
- Application for further time to complete youth sentence
(10) A youth justice court may, on application by or on behalf of the young person in respect of whom a youth sentence has been imposed under any of paragraphs 42(2)(d) to (i), allow further time for the completion of the sentence subject to any regulations made under paragraph 155(b) and to any rules made by the youth justice court under subsection 17(1).
- Interprovincial arrangements
58 (1) When a youth sentence has been imposed under any of paragraphs 42(2)(k) to (r) in respect of a young person, the youth sentence in one province may be dealt with in any other province in accordance with any agreement that may have been made between those provinces. Youth justice court retains jurisdiction (2) Subject to subsection (3), when a youth sentence imposed in respect of a young person is dealt with under this section in a province other than that in which the youth sentence was imposed, the youth justice court of the province in which the youth sentence was imposed retains, for all purposes of this Act, exclusive jurisdiction over the young person as if the youth sentence were dealt with within that province, and any warrant or process issued in respect of the young person may be executed or served in any place in Canada outside the province where the youth sentence was imposed as if it were executed or served in that province.
- Waiver of jurisdiction
(3) When a youth sentence imposed in respect of a young person is dealt with under this section in a province other than the one in which the youth sentence was imposed, the youth justice court of the province in which the youth sentence was imposed may, with the consent in writing of the Attorney General of that province and the young person, waive its jurisdiction, for the purpose of any proceeding under this Act, to the youth justice court of the province in which the youth sentence is dealt with, in which case the youth justice court in the province in which the youth sentence is dealt with shall have full jurisdiction in respect of the youth sentence as if that court had imposed the youth sentence.