Teaching Youth Criminal Justice
One of the courses I teach to help prepare students who are enrolled in Anderson College’s Police Foundations / Law Enforcement Diploma program is Youth Criminal Justice.
The Youth Criminal Justice Act (YCJA) came into force April 2003. Youth in Canada have always been given special consideration by the courts and correctional systems because of their vulnerability and need for protection. This was preceded by the Young Offenders Act and the Juvenile Delinquents Act where court procedures were characteristically very formal.
Under the Youth Criminal Justice Act, a youth who is charged with a crime will generally receive special protections, such as suppression of his or her identity, an increased right to counsel, and particular entitlement to cautions before making statements to police. The YCJA continues to restrict publication of the identity of most young persons accused of criminal offences. Jury trials can also take place in youth justice courts under the YCJA.
Protections afforded by the Charter of Rights and Freedoms apply to adolescents. The youthful accused, under the YCJA, has a right to counsel. Young persons must be held separate and apart from adults in detention after an arrest unless this is absolutely impractical.
The declaration of principles for the YCJA state that extra-judicial measures (EJM) are often the most appropriate and effective means to address youth crime, through allowing effective and timely intervention to correct the behavior of the youth. The measures are adequate to hold a young person, committing a non-violent office, accountable for their behavior where the youth has not previously been found guilty of an offence.
The principles behind the YCJA are to: prevent crime, rehabilitate and reintegrate the youth back into society after having experienced meaningful consequences for their action after timely interventions, with the intent to promote the long term protection of society.
Section 6(1) of the YCJA allows extra-judicial measures to be used when the young persons has committed an offence that has been non-violent or non-serious and they have not previously been found guilty of an offence. The police officer initiates the EJM in lieu of charging the youth.
The objectives of EJM are to occur in an effective and timely manner. It should encourage the youth to acknowledge and repair the harm to the victim and the community. It is important the family and the community be involved and is encouraged. The victim plays a role by participating in decisions. Another consideration is respecting the rights of the youth and the measures should be in proportion to the offence.
So what options are available to the police to consider? The first is to take no further action. The second measure would be to deliver a warning to the youth, (the police will record this warning). Third cautions and fourth referrals to community programs.
Whether the police fail to consider extra-judicial measures or not it does not invalidate a subsequent charge against the young person for the offence. Further, if the police do not use the EJM a charge is laid.
When a young person is charged with an offence, the police do not always provide the record to the RCMP but they may provide the record. Once they are found guilty the police shall provide the record to the RCMP to place it on the Canadian Police Information Centre.
When a young person is unable to obtain counsel, the court is required to direct counsel be provided. They are unable to waive counsel. They have a right to counsel at any stage of their proceedings.
The YCJA outlines forms that requires statements regarding the right to counsel be printed on them. Forms 9, 6, warrant to arrest form 10, undertakings form 11.1, recognizance form 11 and any notice to young person, notice of review if a youth sentence is given to a young person and the notice to a parent or guardian.
The Notice to Parent as per section 26 of the YCJA the Officer in Charge must upon arrest or detention give or cause to be given a notice as soon as possible in writing or orally the reason for arrest and where the youth is being detained.
If the youth is being charged and have been issued a Summons or Appearance Notice the officer will give Notice in writing to parents. If the youth has been issued a Promise to Appear or Recognizance, the Officer In Charge will give notice in writing.
EXTRA-JUDICIAL SANCTIONS s. 10 YCJA
Extrajudicial sanctions are a more formal type of extrajudicial measure and provide another way of dealing with a young person who is alleged to have committed a more serious offence or who has a history of offending behaviour. The Youth Criminal Justice Act says that extrajudicial sanctions may only be used if a young person cannot be adequately dealt with by less formal extrajudicial measures such as a warning, caution or community referral, because of the seriousness of the alleged offence or the nature and number previous offences committed by the young person.
While the acceptance of responsibility is not a condition of being dealt with using the least stringent extrajudicial measures, it is a condition of being subjected to an extrajudicial sanction.
After the police charge the youth then the crown prosecutor reviews the file and makes the decision about whether an extrajudicial sanction would be appropriate, or whether the young person should go to court to face charges. When making this decision, the crown prosecutor considers the nature and number of any previous offences committed by the young person.
The EJS should not be used if a warning, caution or referral would be enough.
Criteria for Sanctions
There are conditions that must be met for EJS to be used. The youth must admit responsibility for their actions. This admission cannot be used as evidence against the youth in the future however EJS can be used as evidence of prior offending behaviors. The youth will have the opportunity to consult with a lawyer. Sanctions require that there be enough evidence to prosecute the youth.
The crown prosecutor will put the file on hold for three months and will send it to a probation officer. The youth will then either work directly with the probation officer to decide what actions the youth must take to complete the program, or the file will be referred to a Youth Justice Committee. The Committee will meet with the youth, talk about the situation, and decide what the consequences for the behavior will be and what you must do to fix the harm caused.
EJS are the most formal type of extrajudicial measures and are part of a program authorized by the Attorney General. In Ontario for instance, formal EJS programs are funded by both the Ministry of Attorney General (MAG) and the Ministry of Children and Youth Services (MCYS) and Youth Justice Committees (YJC).
The YJC program is funded by MAG and is based on a restorative justice approach. Sanctions can be called at any time in the Youth Justice Process
The youth can be referred either pre-charge by police (via EJM) or post-charge by the Crown (via EJS). Post-charge sanctions are referred by the Crown where a young person cannot adequately be dealt with by police caution or warning (extrajudicial measures). EJS are community-based and can include apology to victim, community service work, restitution, cognitive / behavior skills, anger management, life skills. EJS are the most formal type of extrajudicial measures and are part of a program authorized by the Attorney General, s.10(2)(a).
In Ontario, formal EJS programs are funded by both the Ministry of Attorney General (MAG) and the Ministry of Children and Youth Services (MCYS): • Youth Justice Committees (YJC) – The YJC program funded by MAG is based on a restorative justice approach. Young persons can be referred either precharge by police (via EJM) or post-charge by the Crown (via EJS).
CONFERENCES s. 19 YCJA
Trained community volunteers set meetings with the youth, their parent or parents and the victim if the victim chooses to participate to negotiate appropriate ways by which the youth can make amends and be held accountable for their actions. Each YJC has a Steering Committee chaired by the local Crown Prosecutor. The committee provides oversight to the YJC and includes representation from Police, Probation, Legal Aid, defense counsel and victim services. The Youth’s worker may be called to give advice on EJM, conditions for release, sentences, reintegration plans and other matters.
Any sanction that is decided upon must be consistent with the principles of the Act.
PRE-TRIAL DETENTION s. 29(2) YCJA
The police must release a YP unless detention is necessary under provisions of the C.C. It is prohibited to be used as a substitute for child welfare or social measure. A youth justice court judge or justice may order that a YP be detained in custody only if the young person has been charged with a serious offence or an offence other than a serious offence, if they have a history that indicated a pattern of either outstanding charges or findings of guilt.
If the judge or justice is satisfied the YP will not appear in court or the detention is necessary for the protection or the safety of the public or there are exceptional circumstances that warrant detention and that detention is necessary to maintain the confidence in the administration of justice.
Serious violent offences can be remembered with the aide-mémoire MAMAS.
Murder (1st or 2nd Degree)
Attempt Murder
Manslaughter
Aggravated Sex Assault
Serious violent offence
Sentencing Principles from section 28 (1) of the YCJA dictated they need to be a fair and proportionate response to the offence. The sentence needs to hold the YP accountable through meaningful consequences and promote rehabilitation and reintegration while considering the long term protection of the public.
There are restrictions on custody vis a vis section 39 (1) of the YCJA. The court shall not commit a YP to custody unless there was a violent offence, the youth failed to comply with a non-custodial sentences or the young person committed and indictable offence for which an adult would receive 2 years or more and there was history or pattern of EJS or there were findings of guilt or both.
ACTION THE POLICE MAY TAKE UPON A VIOLATION:
No offence for violation
Police report violation to Provincial Director (PD)
Required a warrant issued by PD
Deferred custody
Not an offence
Require warrant issued by PD
SENTENCING OPTIONS AVAILABLE:
Custody and supervision order
Non-custodial sentencing options
Intensive support and supervision program
Intensive rehabilitation custody/supervision order
Reprimand
Fine up to $1000
Restitution
Deferred Custody
CONCLUSION
There you have it. Almost everything you need to know about Youth Criminal Justice. Are you thinking of getting hired by a police service in Ontario? I teach the same content in the Police Foundations Program as cadets learn in the Ontario Police College. You can improve the possibility of being hired by first taking my Police Foundations Program. I have former students who are now employed as full-time police officers and will vouch for being in my class. Get in touch if you are interested in a police career.