Jeunes purgeant des peines de garde
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Principes généraux
PARTIE 5 Garde et surveillance Objectifs
83 (1) Le régime de garde et de surveillance applicable aux adolescents vise à contribuer à la protection de la société, d’une part, en assurant l’exécution des peines par des mesures de garde et de surveillance sécuritaires, justes et humaines, et, d’autre part, en aidant, au moyen de programmes appropriés pendant l’exécution des peines sous garde ou au sein de la collectivité, à la réadaptation des adolescents et à leur réinsertion sociale à titre de citoyens respectueux des lois.
Principes
(2) Outre les principes énoncés à l’article 3, les principes suivants servent à la poursuite de ces objectifs :
a) les mesures nécessaires à la protection du public, des adolescents et du personnel travaillant avec ceux-ci doivent être le moins restrictives possible;
b) l’adolescent mis sous garde continue à jouir des droits reconnus à tous les autres adolescents, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est imposée;
c) le régime de garde et de surveillance applicable aux adolescents facilite la participation de leur famille et du public;
d) les décisions relatives à la garde ou à la surveillance des adolescents doivent être claires, équitables et opportunes, ceux-ci ayant accès à des mécanismes efficaces de règlement de griefs;
e) le placement qui vise à traiter les adolescents comme des adultes ne doit pas les désavantager en ce qui concerne leur admissibilité à la libération et les conditions afférentes.
- PART 5
- Custody and Supervision
- Purpose
83 (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by
- (a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and
- (b) assisting young persons to be rehabilitated and reintegrated into the community as law-abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community.
- Principles to be used
(2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose:
- (a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used;
- (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as a consequence of a sentence under this Act or another Act of Parliament;
- (c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public;
- (d) that custody and supervision decisions be made in a forthright, fair and timely manner, and that young persons have access to an effective review procedure; and
- (e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release.
- Young person to be held apart from adults
84 Subject to subsection 30(3) (pre-trial detention), paragraphs 76(1)(b) and (c) (placement in adult facilities with adult sentence) and sections 89 to 93(placement in adult facilities with youth sentence), a young person who is committed to custody shall be held separate and apart from any adult who is detained or held in custody.
- Levels of custody
85 (1) In the youth custody and supervision system in each province there must be at least two levels of custody for young persons distinguished by the degree of restraint of the young persons in them.
- Designation of youth custody facilities
(2) Every youth custody facility in a province that contains one or more levels of custody shall be designated by
- (a) in the case of a youth custody facility with only one level of custody, being the level of custody with the least degree of restraint of the young persons in it, the lieutenant governor in council or his or her delegate; and
- (b) in any other case, the lieutenant governor in council.
- Provincial director to specify custody level — committal to custody
(3) The provincial director shall, when a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r) or an order is made under subsection 98(3), paragraph 103(2)(b), subsection 104(1) or paragraph 109(2)(b), determine the level of custody appropriate for the young person, after having taken into account the factors set out in subsection (5).
- Provincial director to specify custody level — transfer
(4) The provincial director may determine a different level of custody for the young person when the provincial director is satisfied that the needs of the young person and the interests of society would be better served by doing so, after having taken into account the factors set out in subsection (5).
- Factors
(5) The factors referred to in subsections (3) and (4) are
- (a) that the appropriate level of custody for the young person is the one that is the least restrictive to the young person, having regard to
- (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,
- (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,
- (iii) the safety of other young persons in custody, and
- (iv) the interests of society;
- (b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person; and
- (c) the likelihood of escape.
- Placement and transfer at appropriate level
(6) After the provincial director has determined the appropriate level of custody for the young person under subsection (3) or (4), the young person shall be placed in the youth custody facility that contains that level of custody specified by the provincial director.
- Notice
(7) The provincial director shall cause a notice in writing of a determination under subsection (3) or (4) to be given to the young person and a parent of the young person and set out in that notice the reasons for it.
- Procedural safeguards
86 (1) The lieutenant governor in council of a province shall ensure that procedures are in place to ensure that the due process rights of the young person are protected with respect to a determination made under subsection 85(3) or (4), including that the young person be
- (a) provided with any relevant information to which the provincial director has access in making the determination, subject to subsection (2);
- (b) given the opportunity to be heard; and
- (c) informed of any right to a review under section 87.
- Withholding of information
(2) Where the provincial director has reasonable grounds to believe that providing the information referred to in paragraph (1)(a) would jeopardize the safety of any person or the security of a facility, he or she may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.
- Review
87 (1) A young person may apply for a review under this section of a determination
- (a) under subsection 85(3) that would place the young person in a facility at a level of custody that has more than a minimal degree of restraint; or
- (b) under subsection 85(4) that would transfer a young person to a facility at a level of custody with a higher degree of restraint or increase the degree of restraint of the young person in the facility.
- Procedural safeguards
(2) The lieutenant governor in council of a province shall ensure that procedures are in place for the review under subsection (1), including that
- (a) the review board that conducts the review be independent;
- (b) the young person be provided with any relevant information to which the review board has access, subject to subsection (3); and
- (c) the young person be given the opportunity to be heard.
- Withholding of information
(3) Where the review board has reasonable grounds to believe that providing the information referred to in paragraph (2)(b) would jeopardize the safety of any person or the security of a facility, it may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.
- Factors
(4) The review board shall take into account the factors referred to in subsection 85(5) in reviewing a determination.
- Decision is final
(5) A decision of the review board under this section in respect of a particular determination is final.
- Functions to be exercised by youth justice court
88 The lieutenant governor in council of a province may order that the power to make determinations of the level of custody for young persons and to review those determinations be exercised in accordance with the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. The following provisions of that Act apply, with any modifications that the circumstances require, to the exercise of those powers:
- (a) the definitions review board and progress report in subsection 2(1);
- (b) section 11;
- (c) sections 24.1 to 24.3; and
- (d) sections 28 to 31.
- Youth worker
90 (1) When a youth sentence is imposed committing a young person to custody, the provincial director of the province in which the young person received the youth sentence and was placed in custody shall, without delay, designate a youth worker to work with the young person to plan for his or her reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize his or her chances for reintegration into the community.
- Role of youth worker when young person in the community
(2) When a portion of a young person’s youth sentence is served in the community in accordance with section 97 or 105, the youth worker shall supervise the young person, continue to provide support to the young person and assist the young person to respect the conditions to which he or she is subject, and help the young person in the implementation of the reintegration plan.
- Reintegration leave
91 (1) The provincial director of a province may, subject to any terms or conditions that he or she considers desirable, authorize, for a young person committed to a youth custody facility in the province further to an order under paragraph 76(1)(a) (placement when subject to adult sentence) or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r),
- (a) a reintegration leave from the youth custody facility for a period not exceeding thirty days if, in the opinion of the provincial director, it is necessary or desirable that the young person be absent, with or without escort, for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or reintegrating the young person into the community; or
- (b) that the young person be released from the youth custody facility on the days and during the hours that the provincial director specifies in order that the young person may
- (i) attend school or any other educational or training institution,
- (ii) obtain or continue employment or perform domestic or other duties required by the young person’s family,
- (iii) participate in a program specified by the provincial director that, in the provincial director’s opinion, will enable the young person to better carry out employment or improve his or her education or training, or
- (iv) attend an out-patient treatment program or other program that provides services that are suitable to addressing the young person’s needs.
- Renewal of reintegration leave
(2) A reintegration leave authorized under paragraph (1)(a) may be renewed by the provincial director for one or more thirty-day periods on reassessment of the case.
- Revocation of authorization
(3) The provincial director of a province may, at any time, revoke an authorization made under subsection (1).
- Arrest and return to custody
(4) If the provincial director revokes an authorization under subsection (3) or if a young person fails to comply with any term or condition of a reintegration leave or a release from custody under this section, the young person may be arrested without warrant and returned to custody.
- Transfer to adult facility
92 (1) When a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r), the youth justice court may, on application of the provincial director made at any time after the young person attains the age of eighteen years, after giving the young person, the provincial director and representatives of the provincial correctional system an opportunity to be heard, authorize the provincial director to direct that the young person, subject to subsection (3), serve the remainder of the youth sentence in a provincial correctional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest.
- If serving youth sentence in a provincial correctional facility
(2) The youth justice court may authorize the provincial director to direct that a young person, subject to subsection (3), serve the remainder of a youth sentence in a penitentiary
- (a) if the youth justice court considers it to be in the best interests of the young person or in the public interest;
- (b) if the provincial director applies for the authorization at any time after the young person begins to serve a portion of a youth sentence in a provincial correctional facility for adults further to a direction made under subsection (1);
- (c) if, at the time of the application, that remainder is two years or more; and
- (d) so long as the youth justice court gives the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.
- Provisions to apply
(3) If the provincial director makes a direction under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners and offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.
- Placement when adult and youth sentences
(4) If a person is subject to more than one sentence, at least one of which is a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) and at least one of which is a sentence referred to in either paragraph (b) or (c), he or she shall serve, in a provincial correctional facility for adults or a penitentiary in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code, the following:
- (a) the remainder of any youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r);
- (b) an adult sentence to which an order under paragraph 76(1)(b) or (c) (placement in adult facility) applies; and
- (c) any sentence of imprisonment imposed otherwise than under this Act.
- Youth sentence and adult sentence
(5) If a young person is committed to custody under a youth sentence under paragraph 42(2)(n), (o), (q) or (r) and is also already subject to an adult sentence to which an order under paragraph 76(1)(a) (placement when subject to adult sentence) applies, the young person may, in the discretion of the provincial director, serve the sentences, or any portion of the sentences, in a youth custody facility, in a provincial correctional facility for adults or, if the unexpired portion of the sentence is two years or more, in a penitentiary.
- When young person reaches twenty years of age
93 (1) When a young person who is committed to custody under paragraph 42(2)(n), (o), (q) or (r) is in a youth custody facility when the young person attains the age of twenty years, the young person shall be transferred to a provincial correctional facility for adults to serve the remainder of the youth sentence, unless the provincial director orders that the young person continue to serve the youth sentence in a youth custody facility.
- If serving youth sentence in a provincial correctional facility
(2) If a young person is serving a portion of a youth sentence in a provincial correctional facility for adults pursuant to a transfer under subsection (1), the youth justice court may, on application of the provincial director after the transfer, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more.
- Provisions to apply
(3) If the provincial director makes the direction, the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners and offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.
- Annual review
94 (1) When a young person is committed to custody pursuant to a youth sentence under paragraph 42(2)(n), (o), (q) or (r) for a period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the most recent youth sentence imposed in respect of the offence — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentence.
- Annual review
(2) When a young person is committed to custody pursuant to youth sentences imposed under paragraph 42(2)(n), (o), (q) or (r) in respect of more than one offence for a total period exceeding one year, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court without delay at the end of one year from the date of the earliest youth sentence imposed — and at the end of every subsequent year from that date — and the youth justice court shall review the youth sentences.
- Optional review
(3) When a young person is committed to custody pursuant to a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) in respect of an offence, the provincial director may, on the provincial director’s own initiative, and shall, on the request of the young person, the young person’s parent or the Attorney General, on any of the grounds set out in subsection (6), cause the young person to be brought before a youth justice court to review the youth sentence,
- (a) when the youth sentence is for a period not exceeding one year, once at any time after the expiry of the greater of
- (i) thirty days after the date of the youth sentence imposed under subsection 42(2) in respect of the offence, and
- (ii) one third of the period of the youth sentence imposed under subsection 42(2) in respect of the offence; and
- (b) when the youth sentence is for a period exceeding one year, at any time after six months after the date of the most recent youth sentence imposed in respect of the offence.
- Time for optional review
(4) The young person may be brought before the youth justice court at any other time, with leave of the youth justice court judge.
- Review
(5) If a youth justice court is satisfied that there are grounds for review under subsection (6), the court shall review the youth sentence.
- Grounds for review
(6) A youth sentence imposed in respect of a young person may be reviewed under subsection (5)
- (a) on the ground that the young person has made sufficient progress to justify a change in the youth sentence;
- (b) on the ground that the circumstances that led to the youth sentence have changed materially;
- (c) on the ground that new services or programs are available that were not available at the time of the youth sentence;
- (d) on the ground that the opportunities for rehabilitation are now greater in the community; or
- (e) on any other ground that the youth justice court considers appropriate.
- No review if appeal pending
(7) Despite any other provision of this section, no review of a youth sentence in respect of which an appeal has been taken shall be made under this section until all proceedings in respect of any such appeal have been completed. Youth justice court may order appearance of young person for review (8) When a provincial director is required under subsections (1) to (3) to cause a young person to be brought before the youth justice court and fails to do so, the youth justice court may, on application made by the young person, his or her parent or the Attorney General, or on its own motion, order the provincial director to cause the young person to be brought before the youth justice court.
- Progress report
(9) The youth justice court shall, before reviewing under this section a youth sentence imposed in respect of a young person, require the provincial director to cause to be prepared, and to submit to the youth justice court, a progress report on the performance of the young person since the youth sentence took effect.
- Additional information in progress report
(10) A person preparing a progress report in respect of a young person may include in the report any information relating to the personal and family history and present environment of the young person that he or she considers advisable.
- Written or oral report
(11) A progress report shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth justice court, be submitted orally in court.
- Subsections 40(4) to (10) to apply
(12) Subsections 40(4) to (10) (procedures respecting pre-sentence reports) apply, with any modifications that the circumstances require, in respect of progress reports.
- Notice of review from provincial director
(13) When a youth sentence imposed in respect of a young person is to be reviewed under subsection (1) or (2), the provincial director shall cause any notice that may be directed by rules of court applicable to the youth justice court or, in the absence of such a direction, at least five clear days notice of the review to be given in writing to the young person, a parent of the young person and the Attorney General.
- Notice of review from person requesting it
(14) When a review of a youth sentence imposed in respect of a young person is requested under subsection (3), the person requesting the review shall cause any notice that may be directed by rules of court applicable to the youth justice court or, in the absence of such a direction, at least five clear days notice of the review to be given in writing to the young person, a parent of the young person and the Attorney General.
- Statement of right to counsel
(15) A notice given to a parent under subsection (13) or (14) shall include a statement that the young person whose youth sentence is to be reviewed has the right to be represented by counsel.
- Service of notice
(16) A notice under subsection (13) or (14) may be served personally or may be sent by confirmed delivery service.
- Notice may be waived
(17) Any of the persons entitled to notice under subsection (13) or (14) may waive the right to that notice.
- If notice not given
(18) If notice under subsection (13) or (14) is not given in accordance with this section, the youth justice court may
- (a) adjourn the proceedings and order that the notice be given in the manner and to the persons that it directs; or
- (b) dispense with the notice if, in the opinion of the court, having regard to the circumstances, notice may be dispensed with.
- Decision of the youth justice court after review
(19) When a youth justice court reviews under this section a youth sentence imposed in respect of a young person, it may, after giving the young person, a parent of the young person, the Attorney General and the provincial director an opportunity to be heard, having regard to the needs of the young person and the interests of society,
- (a) confirm the youth sentence;
- (b) release the young person from custody and place the young person under conditional supervision in accordance with the procedure set out in section 105, with any modifications that the circumstances require, for a period not exceeding the remainder of the youth sentence that the young person is then serving; or
- (c) if the provincial director so recommends, convert a youth sentence under paragraph 42(2)(r) to a youth sentence under paragraph 42(2)(q) if the offence was murder or to a youth sentence under paragraph 42(2)(n) or (o), as the case may be, if the offence was an offence other than murder.
- Orders are youth sentences
95 Orders under subsections 97(2) (conditions) and 98(3) (continuation of custody), paragraph 103(2)(b) (continuation of custody), subsections 104(1)(continuation of custody) and 105(1) (conditional supervision) and paragraph 109(2)(b) (continuation of suspension of conditional supervision) are deemed to be youth sentences for the purposes of section 94 (reviews).
- Recommendation of provincial director for conditional supervision of young person
96 (1) When a young person is held in custody pursuant to a youth sentence under paragraph 42(2)(n), (o), (q) or (r), the provincial director may, if satisfied that the needs of the young person and the interests of society would be better served by doing so, make a recommendation to the youth justice court that the young person be released from custody and placed under conditional supervision.
- Notice
(2) If the provincial director makes a recommendation, the provincial director shall cause a notice to be given in writing that includes the reasons for the recommendation and the conditions that the provincial director would recommend be set under section 105 to the young person, a parent of the young person and the Attorney General and give a copy of the notice to the youth justice court.
- Application to court for review of recommendation
(3) If notice of a recommendation is made under subsection (2) with respect to a youth sentence imposed on a young person, the youth justice court shall, if an application for review is made by the young person, the young person’s parent or the Attorney General within ten days after service of the notice, review the youth sentence without delay.
- Subsections 94(7), (9) to (12) and (14) to (19) apply
(4) Subject to subsection (5), subsections 94(7) (no review of appeal pending), (9) to (12) (progress reports) and (14) to (19) (provisions respecting notice and decision of the youth justice court) apply, with any modifications that the circumstances require, in respect of reviews made under this section and any notice required under subsection 94(14) shall also be given to the provincial director.
- If no application for review made under subsection (3)
(5) A youth justice court that receives a notice under subsection (2) shall, if no application for a review is made under subsection (3),
- (a) order the release of the young person and place the young person under conditional supervision in accordance with section 105, having regard to the recommendations of the provincial director; or
- (b) if the court considers it advisable, order that the young person not be released.
For greater certainty, an order under this subsection may be made without a hearing.
- Notice when no release ordered
(6) When a youth justice court orders that the young person not be released under paragraph (5)(b), it shall cause a notice of its order to be given to the provincial director without delay.
- Provincial director may request review
(7) When the provincial director is given a notice under subsection (6), he or she may request a review under this section.
- When provincial director requests a review
(8) When the provincial director requests a review under subsection (7),
- (a) the provincial director shall cause any notice that may be directed by rules of court applicable to the youth justice court or, in the absence of such a direction, at least five clear days notice of the review to be given in writing to the young person, a parent of the young person and the Attorney General; and
- (b) the youth justice court shall review the youth sentence without delay after the notice required under paragraph (a) is given.
- Applicability of Part 5
Serving Youth Sentences as Adult
- Placement when subject to adult sentence
76 (1) Subject to subsections (2) and (9) and sections 79 and 80 and despite anything else in this Act or any other Act of Parliament, when a young person who is subject to an adult sentence in respect of an offence is sentenced to a term of imprisonment for the offence, the youth justice court shall order that the young person serve any portion of the imprisonment in
- (a) a youth custody facility separate and apart from any adult who is detained or held in custody;
- (b) a provincial correctional facility for adults; or
- (c) if the sentence is for two years or more, a penitentiary.
- Young person under age of 18
(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.
- Opportunity to be heard
(3) Before making an order under subsection (1), the youth justice court shall give the young person, a parent of the young person, the Attorney General, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.
- Report necessary
(4) Before making an order under subsection (1), the youth justice court shall require that a report be prepared for the purpose of assisting the court.
- Appeals
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) is part of the sentence.
- Review
(6) On application, the youth justice court shall review the placement of a young person under this section and, if satisfied that the circumstances that resulted in the initial order have changed materially, and after having given the young person, a parent of the young person, the Attorney General, the provincial director and the representatives of the provincial and federal correctional systems an opportunity to be heard, the court may order that the young person be placed in
- (a) a youth custody facility separate and apart from any adult who is detained or held in custody;
- (b) a provincial correctional facility for adults; or
- (c) if the sentence is for two years or more, a penitentiary.
- Who may make application
(7) An application referred to in this section may be made by the young person, one of the young person’s parents, the provincial director, representatives of the provincial and federal correctional systems and the Attorney General, after the time for all appeals has expired.
- Notice
(8) When an application referred to in this section is made, the applicant shall cause a notice of the application to be given to the other persons referred to in subsection (7).
- Limit — age twenty
(9) No young person shall remain in a youth custody facility under this section after the young person attains the age of twenty years, unless the youth justice court that makes the order under subsection (1) or reviews the placement under subsection (6) is satisfied that remaining in the youth custody facility would be in the best interests of the young person and would not jeopardize the safety of others.
2002, c. 1, s. 76; 2012, c. 1, s. 186.
- Release entitlement
78 (1) For greater certainty, section 6 of the Prisons and Reformatories Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a prison.
- Release entitlement
(2) For greater certainty, section 127 of the Corrections and Conditional Release Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a penitentiary.
- If person convicted under another Act
79 If a person who is serving all or a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) is sentenced to a term of imprisonment under an Act of Parliament other than this Act, the remainder of the portion of the sentence being served in the youth custody facility shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.
- If person who is serving a sentence under another Act is sentenced to an adult sentence
80 If a person who has been serving a sentence of imprisonment under an Act of Parliament other than this Act is sentenced to an adult sentence of imprisonment under this Act, the sentences shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.
- Procedure for application or notice
81 An application or a notice to the court under section 64 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.
2002, c. 1, s. 81; 2012, c. 1, s. 187.
- Exception if young person is twenty years old or older
89 (1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence.
- If serving youth sentence in a provincial correctional facility
(2) If a young person is serving a youth sentence in a provincial correctional facility for adults pursuant to subsection (1), the youth justice court may, on application of the provincial director at any time after the young person begins to serve a portion of the youth sentence in a provincial correctional facility for adults, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more.
- Provisions to apply
(3) If a young person is serving a youth sentence in a provincial correctional facility for adults or a penitentiary under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners or offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.
Transferring Youth Serving Sentences
- Transfer of youth sentence
57 (1) When a youth sentence has been imposed under any of paragraphs 42(2)(d) to (i), (k), (l) or (s) in respect of a young person and the young person or a parent with whom the young person resides is or becomes a resident of a territorial division outside the jurisdiction of the youth justice court that imposed the youth sentence, whether in the same or in another province, a youth justice court judge in the territorial division in which the youth sentence was imposed may, on the application of the Attorney General or on the application of the young person or the young person’s parent, with the consent of the Attorney General, transfer to a youth justice court in another territorial division the youth sentence and any portion of the record of the case that is appropriate. All subsequent proceedings relating to the case shall then be carried out and enforced by that court.
- No transfer outside province before appeal completed
(2) No youth sentence may be transferred from one province to another under this section until the time for an appeal against the youth sentence or the finding on which the youth sentence was based has expired or until all proceedings in respect of any such appeal have been completed.
- Transfer to a province when person is adult
(3) When an application is made under subsection (1) to transfer the youth sentence of a young person to a province in which the young person is an adult, a youth justice court judge may, with the consent of the Attorney General, transfer the youth sentence and the record of the case to the youth justice court in the province to which the transfer is sought, and the youth justice court to which the case is transferred shall have full jurisdiction in respect of the youth sentence as if that court had imposed the youth sentence. The person shall be further dealt with in accordance with this Act.
Preventing Early Release
- Application for continuation of custody
98 (1) Within a reasonable time before the expiry of the custodial portion of a young person’s youth sentence, the Attorney General or the provincial director may apply to the youth justice court for an order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.
- Continuation of custody
(2) If the hearing for an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody pending the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.
- Decision
(3) The youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard, order that a young person remain in custody for a period not exceeding the remainder of the youth sentence, if it is satisfied that there are reasonable grounds to believe that
- (a) the young person is likely to commit a serious violent offence before the expiry of the youth sentence he or she is then serving; and
- (b) the conditions that would be imposed on the young person if he or she were to serve a portion of the youth sentence in the community would not be adequate to prevent the commission of the offence.
- Factors
(4) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including
- (a) evidence of a pattern of persistent violent behaviour and, in particular,
- (i) the number of offences committed by the young person that caused physical or psychological harm to any other person,
- (ii) the young person’s difficulties in controlling violent impulses to the point of endangering the safety of any other person,
- (iii) the use of weapons in the commission of any offence,
- (iv) explicit threats of violence,
- (v) behaviour of a brutal nature associated with the commission of any offence, and
- (vi) a substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person’s behaviour;
- (b) psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;
- (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, a serious violent offence;
- (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving;
- (e) whether the young person is more likely to reoffend if he or she serves his or her youth sentence entirely in custody without the benefits of serving a portion of the youth sentence in the community under supervision; and
- (f) evidence of a pattern of committing violent offences while he or she was serving a portion of a youth sentence in the community under supervision.
- Report
99 (1) For the purpose of determining an application under section 98 (application for continuation of custody), the youth justice court shall require the provincial director to cause to be prepared, and to submit to the youth justice court, a report setting out any information of which the provincial director is aware with respect to the factors set out in subsection 98(4) that may be of assistance to the court.
- Written or oral report
(2) A report referred to in subsection (1) shall be in writing unless it cannot reasonably be committed to writing, in which case it may, with leave of the youth justice court, be submitted orally in court.
- Provisions apply
(3) Subsections 40(4) to (10) (procedures respecting pre-sentence reports) apply, with any modifications that the circumstances require, in respect of a report referred to in subsection (1).
- Notice of hearing
(4) When an application is made under section 98 (application for continuation of custody) in respect of a young person, the provincial director shall cause to be given, to the young person and to a parent of the young person, at least five clear days notice of the hearing in writing.
- Statement of right to counsel
(5) Any notice given to a parent under subsection (4) shall include a statement that the young person has the right to be represented by counsel.
- Service of notice
(6) A notice under subsection (4) may be served personally or may be sent by confirmed delivery service.
- When notice not given
(7) When notice under subsection (4) is not given in accordance with this section, the youth justice court may
- (a) adjourn the hearing and order that the notice be given in any manner and to any person that it directs; or
- (b) dispense with the giving of the notice if, in the opinion of the youth justice court, having regard to the circumstances, the giving of the notice may be dispensed with.
- Reasons
100 When a youth justice court makes an order under subsection 98(3) (decision for continued custody), it shall state its reasons for the order in the record of the case and shall provide, or cause to be provided, to the young person in respect of whom the order was made, the counsel and a parent of the young person, the Attorney General and the provincial director
- (a) a copy of the order; and
- (b) on request, a transcript or copy of the reasons for the order.
- Review of youth justice court decision
101 (1) An order made under subsection 98(3) (decision for continued custody) in respect of a young person, or the refusal to make such an order, shall, on application of the young person, the young person’s counsel, the Attorney General or the provincial director made within thirty days after the decision of the youth justice court, be reviewed by the court of appeal, and that court may, in its discretion, confirm or reverse the decision of the youth justice court.
- Extension of time to make application
(2) The court of appeal may, at any time, extend the time within which an application under subsection (1) may be made.
- Notice of application
(3) A person who proposes to apply for a review under subsection (1) shall give notice of the application in the manner and within the period of time that may be directed by rules of court.
- Continuation of custody
104 (1) When a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) has been imposed is held in custody and an application is made to the youth justice court by the Attorney General, within a reasonable time before the expiry of the custodial portion of the youth sentence, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court and the youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard and if it is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person before the expiry of the youth sentence the young person is then serving, order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.
- Continuation of custody
(2) If the hearing of an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody until the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.
- Factors
(3) For the purpose of determining an application under subsection (1), the youth justice court shall take into consideration any factor that is relevant to the case of the young person, including
- (a) evidence of a pattern of persistent violent behaviour and, in particular,
- (i) the number of offences committed by the young person that caused physical or psychological harm to any other person,
- (ii) the young person’s difficulties in controlling violent impulses to the point of endangering the safety of any other person,
- (iii) the use of weapons in the commission of any offence,
- (iv) explicit threats of violence,
- (v) behaviour of a brutal nature associated with the commission of any offence, and
- (vi) a substantial degree of indifference on the part of the young person as to the reasonably foreseeable consequences, to other persons, of the young person’s behaviour;
- (b) psychiatric or psychological evidence that a physical or mental illness or disorder of the young person is of such a nature that the young person is likely to commit, before the expiry of the youth sentence the young person is then serving, an offence causing the death of or serious harm to another person;
- (c) reliable information that satisfies the youth justice court that the young person is planning to commit, before the expiry of the youth sentence the young person is then serving, an offence causing the death of or serious harm to another person; and
- (d) the availability of supervision programs in the community that would offer adequate protection to the public from the risk that the young person might otherwise present until the expiry of the youth sentence the young person is then serving.
- Youth justice court to order appearance of young person
(4) If a provincial director fails to cause a young person to be brought before the youth justice court under subsection (1), the youth justice court shall order the provincial director to cause the young person to be brought before the youth justice court without delay.
- Provisions to apply
(5) Sections 99 to 101 apply, with any modifications that the circumstances require, in respect of an order made, or the refusal to make an order, under this section.
- If application denied
(6) If an application under this section is denied, the court may, with the consent of the young person, the Attorney General and the provincial director, proceed as though the young person had been brought before the court as required under subsection 105(1).