The Juvenile Delinquents Act
The Juvenile Delinquents Act of 1908 enunciated a philosophy which required that children adjudged to have committed delinquencies (i.e. breaches of municipal, truancy, provincial, or federal law) be dealt with not as offenders, but as being in a condition of delinquency and requiring help and guidance and supervision. The determination of whether or not a delinquency had been committed was made informally and sometimes without due process. Available sentencing options included suspension of disposition, adjournment sine die (no penalty), fines, probation, placement with Children's Aid Society, and indeterminate committal to training school. Sentence did not necessarily fit the crime. An individual who violated a minor provincial statute could be sentenced to training school for an undetermined length of time if the judge thought it necessary to reform his or her delinquent condition.
Y.O.A. Declaration of Principle
The Young Offenders Act, unlike the Juvenile Delinquents Act of 1908, focuses on the responsibility of young persons for consequences of their behaviour. (3.(1). Except for s. 26 (breach of probation), federal criminal offences for young persons are the same as for adults. Provincial offences are dealt with under provincial legislation. Most criminal procedure is the same for young persons as it is for adults. Most evidence law is the same for young persons as it is for adults. Sentencing for young persons must fit the crime as it does for adults.
Criminal Code of Canada and the Canada Evidence Act
Individuals seeking to understand the criminal law of Canada should first read the Criminal Code of Canada to determine what behaviour is considered criminal, to learn the essential steps in criminal procedure, and to establish what evidence will be admitted in Court.
Youth Court Jurisdiction
Young persons charged with criminal offences are dealt with in Youth Court.(s.5) In Ontario, Youth Court Judges are judges of the Ontario Court (Provincial Division), the same judges who deal with adults for all adult summary offences and those adult indictable offences tried before provincial judges. Youth Courts in Ontario are generally in the same courthouses as the adult criminal courts. The same Crown Attorneys prosecute as in adult matters. The same court staff assist. The same police officers testify in adult and Youth Courts. Notwithstanding (s. 7) of the Y.O.A., holding facilities, including individual cells for young persons often adjoin adults. A young person in detention in an Ontario courthouse has great potential for being verbally influenced by adult detainees.
Young persons charged with relatively minor criminal offences, such as shoplifting, may be eligible for alternative measures programmes unique to each province. In Ontario, young persons who really are guilty of such offences, may apply to the local Crown Attorney to be considered. If approved, the criminal charges will be withdrawn or stayed upon the young persons' undertakings to do community work, write apologies, make restitution, write papers, or other public service.
Bail Hearings s. 7 and 7.1
Bail hearings for young persons are essentially the same as they are for adults, except that adolescents are generally not released on their own recognizance. Young persons who do not have a parent available to house them, supervise them and post a (surety) will find it very difficult to obtain release pending trial. Adults, on the other hand, who have their own homes and jobs are more likely to be released on their own recognizance. Young person can alternatively be placed in the care of a responsible person under s. 7.1
Notice to Parent s. 9
Unlike the case with adults, a young person's parent must be (notified s. 9) of the Court appearance prior to the date. Notice is given in writing to a parent or adult relative. Matters are often adjourned to permit service of such notice.
Confessions and Statements s. 56
At trial the police often attempt to prove that the young person has made a confession, admitting responsibility for the crime in the form of an oral, handwritten, typed, or videotaped statement. As with adults the statement must be (voluntary) (not as a result of torture, physical abuse, intimidation, threats, or inducements). Police must advise young persons of their right to counsel and afford a reasonable opportunity for counsel under s. 10 of the Canadian Charter of Rights and Freedoms.
Under section 56(2) of the Young Offenders Act, police must clearly explain certain things to a young person prior to taking a statement. The requirement of a clear explanation for each of the four parts of 56(2)(b)cannot be waived. Young persons studying law should carefully learn each component of s. 56(2)(b)(i) through (iv). The young person under 56(2)(c) must be given a reasonable opportunity to consult with a parent and/or a lawyer prior to the taking of any statement. "Consult" means far more than a telephone call, or a "talk to". A young person is entitled to privacy, face to face conversation, quality advice, and reasonable time. A young person may consult both a parent and a lawyer, on the telephone or in person, as the adolescent wishes. Under s. 56(2)(d) any person so consulted, must be present during the taking of the oral, handwritten, typed, or videotaped confession. A young person who clearly understands what he or she is giving up may waive the requirements of s. 56(2)(c) and (d). Any such waiver must however be in writing or videotaped. Unfortunately, most waiver documents signed by young persons prior to the taking of a statement are not adequately understood by them. Research has shown that young persons who sign such waivers are generally those who don't understand them. The public and the media seem convinced that adolescents are all too aware of their legal rights. In fact, nothing could be further from the truth. Our educational institutions need to do a better job of informing young persons of their very important rights under s. 56 of the Young Offenders Act.
A young person who is found guilty of a criminal offence under the Criminal Code of Canada or other federal offence will be sentenced to a penalty which fits the crime. The Court will consider mitigating factors such a guilty plea, demonstrated remorse, restitution, and evidence of good character as well as aggravating factors such as previous criminal record, evidence of planning, extent of violence or damage or loss, impact on the victim, and participation with others. In my experience, the existence of a prior record has more of an aggravating impact in Youth Court than it does in adult court.
Pre-Disposition Report s. 14
If a judge wants more information on the offender than is available prior to sentencing he or she may order a pre-sentence report in adult court or a (pre-disposition report) in Youth Court. In Ontario, a matter will be postponed or adjourned 4 to 6 weeks for preparation of such a report by a probation officer. Parents, the young person, the victim, school authorities, professionals involved with the young person and others will be interviewed. Letters of character reference from family friends, coaches, pastors and employers will be considered. The youth worker will analyze family history, school history, medical and psychological history, and prior involvement with community resources (including probation and Children's Aid Society). A written report will be prepared for the judge immediately prior to the sentencing date. Both the Crown and defence will have an opportunity to cross-examine the author of the report, make corrections, challenge its accuracy, and make other submissions as to sentence.
Available Dispositions s. 20
Available sentencing options under s. 20 include absolute discharge, conditional discharge, fine, compensation or restitution order, community service order, prohibition order (eg. weapons), probation, open custody, or secure custody. An absolute discharge means no sentence other than the finding of guilt. A conditional discharge provides the same, conditional upon satisfactory completion of probation. Community service orders are administered by a local community service co-ordinator or probation officer and often involve work in community centres for seniors or the environment. Open custody means removal from the home for a fixed term and placement in a group home setting. Although there may be no bars on the doors and windows of an open custody placement, rules and staff provide significant limits to one's freedom. Secure custody means jail for young persons with bars and electronic security. Young persons sentenced to open or secure custody do not receive the statutory or earned remission or parole that adults receive. Young persons serve the real time to which they are sentenced. In Ontario, there are no weekend or intermittent sentences for young persons. An adolescent who has served 6 months of his or her custody term may apply to the original sentencing judge to reduce the custodial portion of the original sentence. Temporary absences are sometimes available from the provincial director.
Records s. 45
Contrary to public perception , Youth Court records are not destroyed at age 18. Evidence of prior findings of guilt under the Young Offenders Act are often used against adults in Court at bail hearings and sentencing. Young persons are never "convicted" but rather are "found guilty" of criminal offences.
After periods of time, Youth Court records are made not available, i.e. they may be purged from the local police or R.C.M.P. databases. The periods are:
alternative measures two years
absolute discharge one year
conditional discharge three years
other dispositions summary offences three years after all dispositions complete
indictable offences five years after all dispositions complete
Dispositions other than alternative measures and discharges will not be purged, however, if there is an intervening offence. Notwithstanding these provisions, fingerprints are transferred to the Special Fingerprints Repository and are destroyed after a further five years. Individuals with records prior to December 1995 should apply to the R.C.M.P. to obtain the benefit of these sections.
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