5.4 Youth Criminal Justice

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

June 27, 2014

1. Introduction
2. Guiding Principles Under the YCJA
3. Extrajudicial Measures
4. Bail
- 4.1. When should the Crown consider opposing bail for a young person?
5. Right to Counsel
6. Sentencing
7. Privacy, Publication and Records
8. Crown Obligation to Parents and Victims
9. Transitional Provisions
Appendix A
Appendix B

1. Introduction

Young persons^{Footnote 1} who are charged with federal offences^{Footnote 2} generally must be prosecuted in accordance with the provisions of the Youth Criminal Justice Act (YCJA).^{Footnote 3} The YCJA provides the philosophical and procedural framework for a distinct and separate criminal justice regime for young persons, which recognizes that the youth criminal justice system must be based on the principle of the diminished moral culpability of young persons.^{Footnote 4}

Crown counsel who are prosecuting young persons must be familiar with the YCJA provisions, including the guiding principles, enhanced procedural protections, extrajudicial measures,^{Footnote 5} sentencing principles, available sentences, and the specific rules regarding the privacy of young persons as well as access to, and disclosure of, youth records. These rules differ, and often significantly, from those that apply to adults who are prosecuted in accordance with the Criminal Code. Young persons have not only all of the rights guaranteed to adults by virtue of the Canadian Charter of Rights and Freedoms, they have additional rights and protections under the YCJA.

2. Guiding Principles Under the YCJA

The key guiding principles of the YCJA are found in both the Preamble and in s. 3 of the YCJA, and are intended to guide Crown counsel and other youth justice system participants in the interpretation and application of the YCJA. The Preamble includes as one of the overarching principles of the YCJA: The youth criminal justice system is intended to reserve its most serious intervention for the most serious crimes and to reduce the over-reliance on incarceration for non-violent^{Footnote 6} young persons.

Section 3 of the YCJA provides detailed guiding principles regarding the youth criminal justice system, but does not prioritize those principles. Nevertheless, the first statement in s. 3 states that the youth criminal justice system is intended to protect the public by holding young persons accountable through proportionate measures, by promoting their rehabilitation and re-integration, and by referring them to community programs or agencies to address and thus help prevent crime. Crown counsel should also remain attuned to the fact that s. 3 states that measures against young persons are expected to respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and young persons with special requirements.^{Footnote 7}

3. Extrajudicial Measures

3.1. Introduction

Similar to alternative measures for adults, extrajudicial measures are measures other than formal judicial proceedings designed to hold young persons accountable for the offending conduct. Unlike alternative measures for adults, however, the extrajudicial measures regime for young persons is detailed and directive; it identifies specific types of extrajudicial measures, states their objectives, and provides principles to guide decisions regarding their use.

Crown counsel can use extrajudicial measures to address offending behaviour by young persons provided the Crown is satisfied that it would be appropriate in the circumstances. Generally such measures will be most suitable for young persons with no record, who have committed less serious offences and are not likely to re-offend. Such measures may often be the most effective, and quickest response (in relation to the time of the offending conduct), to hold the young person accountable, to repair the harm done to the victim and the community, and to reduce recidivism, and thus serve the important goal of public protection.

3.2. Statutory guidelines for the use of extrajudicial measures

The YCJA sets out specific principles in ss. 4 and 5 to guide police and Crown counsel in the use of extrajudicial measures.

Extrajudicial measures are expected to be proportionate to the seriousness of the offence. They are also presumed adequate to hold a young person accountable for a non-violent offence if the young person has not previously been found guilty of an offence.^{Footnote 8} This presumption, albeit rebuttable, is a strong direction from Parliament that Crown counsel are expected to use extrajudicial measures rather than the court to deal with non-violent young persons who have not previously been found guilty of offences. However, Crown counsel may find that certain offences that have not generally been interpreted by the courts to fit the definition of a violent offence under the YCJA nevertheless require the Crown to conclude that extrajudicial measures may not be appropriate.^{Footnote 9}

Crown counsel should also be aware that extrajudicial measures can be used, even if the young person has previously been dealt with by extrajudicial measures, or has previously been found guilty of an offence, provided the use of the extrajudicial measure is consistent with the principles in s. 4 and is considered adequate to hold the young person accountable.^{Footnote 10}

3.3. Extrajudicial measures: options for Crown counsel

If a pre-charge screening program^{Footnote 11} is in place in the jurisdiction, Crown counsel can advise the police that, under s. 6 of the YCJA, before laying a charge, police are obliged to consider whether any of the following options would be sufficient to address the offending conduct:

take no further action;
issue a warning;
issue a police caution if a police cautioning program has been established in the jurisdiction; or
with the consent of the young person, refer the young person to a community program or agency that may assist the young person not to commit offences.

Section 6 of the YCJA does not oblige the police to consider whether an extrajudicial sanction, which is the most severe type of extrajudicial measure, would be appropriate before proceeding with a formal charge. However, if the police advise the Crown prior to laying a charge that the police believe a sanction would be the best response in the circumstances, Crown counsel must be satisfied that the conditions in s. 10 of the YCJA have been met.^{Footnote 12}

If a pre-charge screening program is not in place in the jurisdiction, and, as a result, Crown counsel is not consulted until after the police lay the charge, Crown counsel has the following options once a charge has been laid and the police have forwarded the file to the Crown:

3.3.1. Withdrawal of the charge

Crown counsel may determine that, although there is sufficient evidence to proceed with the prosecution,^{Footnote 13} withdrawal of the charge is appropriate. It may be clear, for example, that after considering the principles and objectives in ss. 3, 4 and 5 of the YCJA, and the factors related to the seriousness of the offence, discussed below, that the process of apprehension, detention and charging has been a sufficient response from the youth criminal justice system, and no further action is required.

3.3.2. Referral to a community program or agency

A referral to a community program or agency, with the consent of the young person, may be appropriate in cases where it is clear that the young person needs assistance with a problem that may have contributed to the commission of the offence. Rather than prosecuting the young person, Crown counsel may conclude that the matter can be addressed more appropriately outside of the criminal justice system by such a referral. For example, the young person may require help from a substance abuse program. While the YCJA does not expressly codify this referral power for prosecutors within the extrajudicial measures regime, as it does for the police, s. 3 of the YCJA states that the youth criminal justice system is intended to protect the public by supporting crime prevention through referrals of young persons to community programs or agencies to address the underlying causes of their criminality. It is within Crown counsel’s discretion to make such referrals.

3.3.3. Crown cautions

3.3.3.1. Attorney General of Canada authorization for Crown cautions

Pursuant to s. 8 of the YCJA, the Attorney General^{Footnote 14} may establish a program authorizing prosecutors to administer cautions to young persons instead of starting or continuing judicial proceedings. The Attorney General of Canada hereby authorizes the use of Crown cautions by federal prosecutors in accordance with this directive.

3.3.3.2. Definition of Crown cautions and general procedures regarding their use

A Crown caution^{Footnote 15} is a formal warning from the prosecutor that, although there are sufficient grounds to prosecute the offence, the prosecutor will not be proceeding with the charge. The caution advises the young person to avoid involvement in crime in the future.

A Crown caution letter must be provided to the young person. Crown counsel should meet with young persons to provide these cautions to emphasize the importance of the message. A police officer or another appropriate witness must be present for this meeting; the presence of this witness is particularly important when Crown counsel meets with a young person of the opposite gender. The young person should be encouraged to be accompanied by a parent or another suitable adult. See Appendix A for the format and substance of a Crown caution letter. A notice that the young person has been cautioned, as well as a copy of the caution letter, must also be provided to the parent or guardian of the young person wherever possible. See Appendix B for the format and substance of a Crown notice to a parent or guardian.

Once Crown counsel has confirmed that the young person has been cautioned, and has documented the file accordingly, the charge or charges should be withdrawn.

3.3.3.3. Crown cautions: specific considerations

Crown cautions should be adequate to hold young persons accountable for less serious offences.

Crown counsel must not use Crown cautions in relation to matters in which the young person caused or attempted to cause bodily harm^{Footnote 16} or should have reasonably foreseen that bodily harm would be caused by the offence.

A Crown caution is also unlikely to be adequate to hold a young person accountable for the following drug offences:

possession of more than 30 grams of marihuana or more than one gram of cannabis resin, or possession of Schedule I drugs, such as cocaine, ecstasy, heroin or methamphetamine;
trafficking in a controlled substance, or possession of the controlled substance for the purpose of trafficking.

In some circumstances, Crown counsel may consider resolving the drug offences identified directly above by using an extrajudicial sanction, which is the most serious state response available within the range of extrajudicial measures, as discussed below.

The choice between using a Crown caution or an extrajudicial sanction depends on several factors, as discussed below.

3.3.4. Extrajudicial sanctions

3.3.4.1. Authorization of the Attorney General of Canada

Pursuant to s. 10(2)(a) of the YCJA, the Attorney General of Canada hereby authorizes the use by federal prosecutors of extrajudicial sanctions consistent with the principles of the YCJA and criteria in this directive.

For the purposes of s. 10(2)(a) of the YCJA, the range of acceptable sanctions that can form part of an extrajudicial sanctions program authorized by the Attorney General of Canada can include community service, restitution or compensation in cash or services, mediation, referrals to specialized programs for counselling, treatment or education, (e.g. life skills, drug or alcohol treatment, anger management), referrals to community, aboriginal or youth justice committees (which can recommend sanctions), victim-offender reconciliation programs and similar measures aimed at restorative justice, a letter of apology or essay, and other reasonable sanctions or measures that are consistent with the objectives of the YCJA and criteria in this directive. For greater certainty, a federal prosecutor can also refer an offender to an individual, committee or agency in a community that can recommend a sanction or sanctions provided the extrajudicial sanction falls within a program of extrajudicial sanctions authorized by the province or territory in accordance with s. 10(2)(a).

3.3.4.2. Statutory preconditions regarding extrajudicial sanctions

Extrajudicial sanctions can be used to deal with a young person alleged to have committed an offence only if the young person cannot be dealt with by a warning, caution or referral in ss. 6, 7 or 8 because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances. Crown counsel should determine the seriousness of the offence by considering the factors discussed below at 3.3.4.4.

Unlike other types of extrajudicial measures, such as a police warning or a Crown caution, an extrajudicial sanction has specific conditions outlined in s. 10, such as requiring the young person to accept responsibility for the act that forms the basis of the offence. The young person must also consent to the terms and conditions of the sanction. Failure to comply can result in the prosecution of the offence.

3.3.4.3. Extrajudicial sanctions: specific considerations

There is no limit to the number of times that a young person may be dealt with through extrajudicial sanctions.

Even if the Crown determines that a less serious extrajudicial measure, such as a Crown caution, is inappropriate, Crown counsel should consider whether an extrajudicial sanction would be adequate to hold the young person accountable for the offending behaviour.

It is unlikely that an extrajudicial sanction will be appropriate for offences in which the young person caused or attempted to cause bodily harm, or should have reasonably foreseen that bodily harm would be caused by the offence.

Extrajudicial sanctions may be appropriate to deal with some drug offences that are too serious to be dealt with by a Crown caution. However, it will generally be inappropriate to resolve the following drug offences or offences committed in the following circumstances by imposing an extrajudicial sanction rather than proceeding with a prosecution:

using another person more than two years younger than the young person alleged to have committed the offence to commit or assist in the commission of a drug offence;
trafficking or possession for the purpose of trafficking in Schedule I drugs, such as cocaine, heroin, ecstasy or methamphetamine (an exception may arise where the young person shares a very small quantity of the substance with a peer for little or no consideration);
the conduct demonstrated sophisticated planning (for example, the offence was part of an ongoing criminal enterprise); or
where weapons were involved.

When Crown counsel imposes an extrajudicial sanction on a young person, the young person’s file must be documented accordingly.

3.3.4.4. Factors related to the seriousness of the offence, the history of previous offences or any other aggravating circumstances

The following factors are relevant to determining the seriousness of the offence, the history of previous offences or any other aggravating circumstances, for purposes of deciding if an extrajudicial sanction is appropriate:

whether the offence is summary or indictable;
whether the offence involved the use of, or threatened use of, violence reasonably likely to result in harm that is more than transient or trifling in nature;
whether a weapon was used or threatened to be used in the commission of the offence. As youth cases have demonstrated (water balloons and spit-balls have been found to be weapons), it is important to consider the actual danger represented by the weapon;
the potential or actual harm or damage to the victim (physical, psychological or financial) and/or to society;
whether it was a sexual offence; if the offence is a drug offence, the nature and deleterious consequences of the drugs involved should be considered;
whether a mandatory minimum penalty could be imposed for the offence if the young person were found eligible for an adult sentence;
whether the offence is a property offence. If so, did the young person intentionally cause or attempt to cause substantial property damage or loss? Should the young person have reasonably foreseen that substantial property damage would be caused by the offence?;
whether the offence is an administration of justice offence, such as breach of probation. If so, would the non-compliance (e.g., failure to attend school, violation of curfew) have been an offence outside the context of a probation order? If not, it should be considered less serious and more likely to be dealt with appropriately through extrajudicial measures or through a review of the original sentence to determine whether the conditions should be changed;
the role of the young person in the incident. For example, if the young person was the leader who planned and directed the offence, then his/her degree of responsibility is greater. However, this factor is secondary to the seriousness of the offence;
whether the young person was a victim in the commission of the offence (e.g., a sexually exploited juvenile prostitute, a young person committing a drug offence who is being directed or exploited by an adult drug dealer). If so, it is more likely that an extrajudicial measure should be used;
whether the young person has a history of committing offences. If so, what is the nature and number of previous offences? Although a history of offences may indicate that a more serious consequence is required to hold the young person accountable, this factor is secondary to the seriousness of the current offence;
whether the young person has displayed remorse (e.g., through voluntary reparation to the victim or to the community, or has agreed to make such reparation); and
if the young person were to proceed through the court system, what is the likelihood that the sentence would be more severe than what is available through extrajudicial measures?

4. Bail

Young persons can be detained in custody at the pre-trial stage only in the circumstances identified in s. 29 (2) of the YCJA. Crown counsel bears the onus of satisfying the youth justice court judge or the justice, on a balance of probabilities, that detention is required due to any of the grounds described in s. 29 (2)(b) and that no conditions of release would enable the risk to be managed in the community. Otherwise, the provisions in Part XVI of the Criminal Code regarding detention and release apply to young persons, unless these provisions are inconsistent with the specific provisions of the YCJA.^{Footnote 17}

4.1. When should the Crown consider opposing bail for a young person?

Crown counsel should be most concerned about violent and repeat offenders who pose a public safety risk if released. This is consistent with the principles in the bail regime in s. 29 (2), as well as the Preamble, which clearly states that the youth criminal justice system should reduce the over-reliance on jail for non-violent young persons.

If the Crown wishes to show cause, Crown counsel should be satisfied that the concern (failure to appear, protection of the public, or exceptional circumstances and maintaining confidence in the administration of justice) cannot be addressed and managed by conditions of release.

5. Right to Counsel

Crown counsel should be aware that, in certain situations, the youth justice court can direct that a young person be represented by counsel. When such direction is made, the Attorney General must appoint counsel, or cause counsel to be appointed.^{Footnote 18} In these circumstances, Crown counsel should notify the Chief Federal Prosecutor (CFP) or a person designated by the CFP in the territory or province to discuss procedures.

6. Sentencing

6.1. Sentencing principles

A young person who is found guilty of an offence will receive a youth sentence in accordance with the general principles in s. 3, the purpose and principles of sentencing in s. 38, and the available sentences in the YCJA. However, if a young person is found guilty of an offence, and the youth justice court judge orders an adult sentence pursuant to s. 72 of the YCJA, as discussed below, the young person will be sentenced in accordance with the sentencing principles and sentences in the Criminal Code. In these circumstances, mandatory minimum penalties available under the Criminal Code or the Controlled Drugs and Substances Act can be imposed on young persons provided the conditions for an MMP are satisfied in the particular case.^{Footnote 19}

6.2. When to seek a custodial youth sentence

Crown counsel can seek a custodial youth sentence for a young person only in certain situations, which are identified in s. 39 of the YCJA. Under the YCJA, youth custodial sentences are designed so that a portion of the sentence is served in custody and a portion is served in the community. This approach is aimed at encouraging the rehabilitation and re-integration of the young person back into the community.

In considering whether to seek a custodial sentence, Crown counsel must consider the nature of the sentence that is required to hold the young person adequately accountable, that will have meaningful consequences for the young person, and that will also promote rehabilitation and re-integration into society, and thus contribute to the long-term protection of society.^{Footnote 20}

Specific sentencing principles apply to a young person who is to receive a youth sentence under the YCJA.^{Footnote 21} For example, the youth sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person.^{Footnote 22} The sentencing principles of rehabilitation and re-integration, specific deterrence and denunciation, are all subject to proportionality.

Crown counsel must also bear in mind that s. 38 directs the youth justice court to consider all available sanctions other than custody that are reasonable for all young persons, paying particular attention to the circumstances of aboriginal young persons.^{Footnote 23} Further, Crown counsel must remain alive to the fact that general deterrence is not a sentencing principle that applies to a young person who is receiving a youth sentence under the YCJA.^{Footnote 24}

6.3. Adult sentences

Crown counsel can apply for an adult sentence for a young person in any case it considers appropriate, provided the young person meets the basic eligibility requirements: there must be a guilty finding against the young person in relation to an offence for which an adult could receive more than two years in jail and the young person must have been at least 14 at the time of the offence.^{Footnote 25}

However, if the offence is a serious violent offence,^{Footnote 26} committed by a young person who was at least 14 at the time of the incident, Crown counsel must considerwhether it would be appropriate to apply for an adult sentence.^{Footnote 27} In such cases, prior to deciding whether to apply for the adult sentence, Crown counsel with carriage of the file must consult the CFP, the Deputy CFP or the General Counsel Legal Operations. If the Crown ultimately decides not to apply in such a case, the Crown must advise the youth justice court before the young person enters a plea or, with leave of the court, before the trial.^{Footnote 28} Crown counsel must ensure that the file is appropriately documented so that it is clear that Crown counsel considered the appropriateness of an adult sentence in all cases where it is now obliged to do so.

Otherwise, when the Crown intends to apply for an adult sentence, the Crown must give notice of that intention to the young person and the youth justice court before the young person enters a plea or, with leave of the court, before the start of the trial.

6.3.1. Factors relevant to whether Crown counsel should apply for an adult sentence

The YCJA does not explicitly identify the factors Crown counsel should consider in deciding whether to apply for an adult sentence.^{Footnote 29} However, given that Crown counsel is statutorily mandated to consider applying for an adult sentence any time a young person who was at least 14 at the time of the incident has committed a serious violent offence, the seriousness of the offence is obviously a factor to be considered.^{Footnote 30}

Other relevant factors Crown counsel should consider when deciding whether to apply for an adult sentence, include the following:

the age, maturity, character, background and previous record of the young person;
the level of intelligence, sophistication, and dependency (including the capacity for moral judgment) of the young person;
the role of the young person in the commission of the crime;
the harm done to victims, and whether it was intentional or reasonably foreseeable;
the adequacy of a youth sentence to hold the young person accountable, to protect the public and to serve the goal of rehabilitation;
the availability of treatment and resources in the youth system versus the adult system;
the fact that the identity of the young person will automatically be made public when a young person receives an adult sentence,^{Footnote 31}
the importance of general deterrence, which is a sentencing principle only when a young person receives an adult sentence; and
any other factors that the Crown considers relevant in a particular case.

6.3.2. Test for an adult sentence

Before imposing an adult sentence, the youth justice court must be satisfied that the presumption of the diminished moral blameworthiness of the young person has been rebutted.^{Footnote 32} The youth justice court must also be satisfied that a youth sentence would not be of sufficient length to hold the young person accountable. The Crown bears the onus of satisfying the youth justice court in this regard.^{Footnote 33}

7. Privacy, Publication and Records

7.1. Introduction

The privacy rights of young persons who are dealt with under the YCJA are set out in s. 3 and Part 6 of the YCJA;^{Footnote 34} the privacy of young persons is a theme throughout the YCJA.

7.2. Publication

The YCJA generally protects the identities of young persons who are dealt with under the YCJA, as well as the identities of children and young persons who are witnesses or victims in relation to offences committed or alleged to have been committed by young persons. However, there are exceptions to these rules,^{Footnote 35} which include when a young person receives an adult sentence, or, in certain circumstances, when a young person receives a youth sentence for a violent offence.^{Footnote 36}

The identity of a young person can be published when the young person receives an adult sentence. Regarding the second exception (when the young person receives a youth sentence for a violent offence), the publication ban can be lifted only if Crown counsel satisfies the youth justice court judge that the publication ban should be lifted because the young person poses a significant risk of committing another violent offence and lifting the ban is necessary to protect the public.^{Footnote 37} Thus, in cases where the Crown takes the position that the ban must be lifted, Crown counsel must ensure that it has placed before the court an adequate evidentiary record.

7.3. Access to and disclosure of youth records

The YCJA creates a regime for access to, and disclosure of, three types of youth records: court records, police records and records kept by government departments or agencies, which includes the Crown. It is an offence to disclose youth records, as defined in the YCJA, except in accordance with the YCJA.^{Footnote 38}

Crown counsel, as a record-keeper, has discretion under s. 119 of the YCJA as to whether to disclose a youth record in its possession to the parties identified in that section. When Crown counsel receives a request for a youth record, Crown counsel must be attuned to the fact that youth records generally remain accessible for only specified periods of time, which are spelled out in s. 119(2).

Crown counsel also has the discretion to disclose court or police records during proceedings under any federal act to a person who is a co-accused with the young person in relation to the offence for which the record is kept, and information to an accused in a proceeding that identifies a witness as a young person who has been dealt with under the YCJA.^{Footnote 39}

In the event that a requesting party disagrees with the Crown’s decision not to disclose a youth record in a given case, the party can apply to a youth justice court judge for the record under s. 119(1)(s) if the access period to the record has not expired. If the access period has expired, an application can be made under s. 123.

Once a party is granted access to a record, the party cannot further disclose the information in the record unless there is authority for such further disclosure in the YCJA.^{Footnote 40}

When the Crown is preparing for sentencing in relation to a youth case, it is important for the Crown to be aware that the young person’s youth record can be included in the pre-sentence report, provided access to the youth record is still open under s. 119(2).^{Footnote 41}

Crown counsel should also be aware that, unlike other types of extrajudicial measures, a young person’s record of extrajudicial sanctions can be made available to various parties^{Footnote 42} upon request, and the history of a young person’s involvement in extrajudicial sanctions can be included in a pre-sentence report and raised during the young person’s sentencing hearing for a subsequent offence, provided the access period to the record is still open.^{Footnote 43}

It is also important for Crown counsel to be attuned to the fact that if a person is convicted of an offence committed after becoming an adult, while access to his or her youth record remains open, Part 6 of the YCJA no longer applies and that person’s youth record loses the protections of the YCJA and is to be treated like an adult record.^{Footnote 44} In addition, in certain circumstances, a guilty finding received under the YCJA can be considered a previous conviction for purposes of imposing a greater punishment on an adult under other Acts of Parliament, such as the Criminal Code or the Controlled Drugs and Substances Act.^{Footnote 45}

Access to police and government records are more strictly controlled when the record concerns an extrajudicial measure other than an extrajudicial sanction. Only the police, the Crown, or a person participating in a conference, is allowed to have access to these records for certain purposes, including in order to decide whether to use another extrajudicial measure. By contrast, youth records involving extrajudicial sanctions are more widely accessible.^{Footnote 46}

Nevertheless, police forces must keep records of all extrajudicial measures that they use to deal with young persons.^{Footnote 47} Crown counsel should ensure police forces are aware of this obligation and check with the relevant police force in appropriate cases to ensure the Crown has the complete record.

8. Crown Obligation to Parents and Victims

The YCJA expressly recognizes the interests of victims as well as those of the parents of accused young persons.^{Footnote 48}

Thus, Crown counsel should:

Verify that parents have been informed of measures or proceedings involving their children and encourage them to support their children in addressing their offending behaviour;^{Footnote 49}
If a young person receives an extrajudicial sanction, attempt to ensure that the program administrator is aware of the obligation to inform the parent of the young person of the sanction;^{Footnote 50}
Take into account the interests of victims,^{Footnote 51} treat victims with courtesy, compassion and respect, and provide them with information about the proceedings so that they have an opportunity to participate and be heard;^{Footnote 52}
If a young person receives an extrajudicial sanction, inform the victim, upon request, of the identity of the young person and how the offence was dealt with.^{Footnote 53} In these circumstances, the Crown must also inform the victim that he or she is not permitted to further disclose that information unless provisions of the YCJA authorize it.^{Footnote 54}

9. Transitional Provisions

Crown counsel must remain mindful of the transitional provisions that are contained in the Safe Streets and Communities Act because they clarify when and how the 2012 amendments to the YCJA apply. As discussed at note 3, annual annotated Criminal Codes do not always include these transitional provisions. For example, Crowns must remain cognizant that some of the 2012 amendments to the YCJA apply only to offences committed after the October 23, 2012 coming into force date of the amendments, such as the amendments relating to the sentencing principles and to the eligibility criteria for custodial sentences under s. 39.^{Footnote 55} The other amendments, such as changes to the bail regime under s. 29 of the YCJA, apply to young persons who committed offences before the coming into force of the amendments if proceedings had not commenced before October 23, 2012.

Appendix A

Crown Caution Letters

Consistent with the policy criteria set out in section 3.3.3 of this directive, federal prosecutors may administer Crown cautions under s. 8 of the Youth Criminal Justice Act, in the format below, modified as necessary to fit the circumstances.

Section 8 Youth Criminal Justice Act

Crown Caution to a Young Person

To: (name of young person)

The Public Prosecution Service of Canada has received a report from {police agency}. In this report, police officers indicate that they have reasonable grounds to believe that you have broken the law by:

{set out offence(s)}.

While there is sufficient information to proceed with a prosecution, the Crown has decided, under s. 8 of the Youth Criminal Justice Act, to issue a formal caution to you rather than proceeding with charges for this offence.

If you break the law in the future, more serious consequences, including charges and prosecution with potentially serious penalties, may follow.

If a future matter proceeds to prosecution, a youth record could result. Meanwhile, a record of this Crown caution remains on file.

You are required to contact the Crown’s office, or your probation officer or youth worker, to confirm receipt of this caution letter.

(date)

(place)

{name of person signing on behalf of the Director of Public Prosecutions and Deputy Attorney General of Canada}

Contact # for further information___________________

Appendix B

Notice to Parent or Guardian

Crown counsel should notify a parent or guardian of the young person that a Crown caution has been administered in the following format, modified as necessary to fit the circumstances.

Section 8 Youth Criminal Justice Act

Notice to the Parent or Guardian that a Young Person has been given a Crown Caution

To:{name of parent, guardian or adult with legal responsibility for young person}

This letter concerns {name of young person}.

The Public Prosecution Service of Canada has received a report from {police agency}. In this report, police officers indicate that they have reasonable grounds to believe that (name of young person) has broken the law by:

{set out offence(s)}

While there is sufficient information to proceed with a prosecution, the Crown has decided, under s. 8 of the Youth Criminal Justice Act, to issue a formal caution to (the young person) rather than proceeding with charges for this offence.

Please understand that if (the name of the young person) breaks the law in the future, there may be more serious consequences, including charges and prosecution with potentially serious penalties. If a future matter proceeds to prosecution, a youth record could result.

A record of this Crown caution remains on file.

{date}

{place}

{name of person signing on behalf of the Director of Public Prosecutions and Deputy Attorney General of Canada}

Contact # for further information___________________

Footnotes

Footnote 1

Young persons are defined in s 2 of the YCJA as persons who are at least 12 but under 18 at the time of the alleged commission of the offence. Thus an adult can be charged with having committed an offence as a young person.

Return to footnote 1 referrer

Footnote 2

The definition of an offence in s 2 of the YCJA captures offences under Acts of Parliament and federal regulations.

Return to footnote 2 referrer

Footnote 3

Youth Criminal Justice Act, SC 2002, c 1 (in force 1 April 2003). Crown counsel must be mindful of significant amendments to the YCJA, which came into force on October 23, 2012. This directive incorporates those amendments, however, a link to the precise wording of the amendments is included here because the annual annotated Criminal Codes do not always include the important transitional provisions contained at Clause 195 of the Safe Streets and Communities Act, SC 2012 c1. Some versions of the Criminal Code also contain mistakes regarding the amendments. For example, the 2014 version of Martin’s Annual Criminal Code wrongly retains a reference in s 3(1)(a) of the YCJA to the long-term protection of the public when in fact this wording was removed in the new version of s 3(1)(a) of the YCJA. See online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5465759&File=4>.

Return to footnote 3 referrer

Footnote 4

YCJA, ibid at s 3(1)(b).

Return to footnote 4 referrer

Footnote 5

Extrajudicial Measures are measures other than judicial proceedings used to deal with young persons alleged to have committed offences .

Return to footnote 5 referrer

Footnote 6

A violent offence is defined in s 2 of the YCJA and includes an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Return to footnote 6 referrer

Footnote 7

YCJA, supra note 3, s 3 (1)(c)(iv). This paragraph is not a complete encapsulation of the principles set out in s 3.

Return to footnote 7 referrer

Footnote 8

YCJA, supra note 3, at ss 5 (e) and 4 (c) respectively.

Return to footnote 8 referrer

Footnote 9

One example may involve a situation where a young person trafficks in Schedule I drugs, such as cocaine, heroin, ecstasy or methamphetamine. Historically, the courts have generally not found trafficking in serious drugs to meet the definition of a violent offence in the YCJA, but this jurisprudence generally dates from the period before the definition of violent in the YCJA was expanded in 2012 to capture conduct that endangers the life or safety of others. The amended definition supports an argument that trafficking in serious drugs meets the definition of a violent offence and thus the presumption of an extrajudicial measure does not apply.

Return to footnote 9 referrer

Footnote 10

YCJA, supra note 3, s 4(d).

Return to footnote 10 referrer

Footnote 11

Pre-charge screening programs exist in British Columbia, Quebec and New Brunswick.

Return to footnote 11 referrer

Footnote 12

The conditions required before an extrajudicial sanction can be imposed are similar to those that must be present in relation to Alternative Measures for adults under s 717 of the Criminal Code. Before an extrajudicial sanction can be imposed, for example, s 10(2)(f) requires that the Attorney General be satisfied that there is sufficient evidence to proceed with a prosecution.

Return to footnote 12 referrer

Footnote 13

Crown counsel should also consider the factors listed in the PPSC Deskbook guideline “2.3 Decision to Prosecute”.

Return to footnote 13 referrer

Footnote 14

In s 2 of the YCJA, Attorney General means the Attorney General as defined in s 2 of the Criminal Code and includes an agent or delegate of the Attorney General.

Return to footnote 14 referrer

Footnote 15

YCJA, supra note 3, s 8. See also Appendix A.

Return to footnote 15 referrer

Footnote 16

Crown counsel must keep in mind that bodily harm includes psychological harm. See R v McCraw [1991] 3 SCR 72.

Return to footnote 16 referrer

Footnote 17

YCJA, supra note 3, s 28. In particular, Crown counsel should note s 29(1) (prohibition on detention as a social measure) and s 31 (availability of a responsible person rather than pre-trial detention).

Return to footnote 17 referrer

Footnote 18

YCJA, supra note 3, s 25(5).

Return to footnote 18 referrer

Footnote 19

YCJA, supra note 3, ss 50 and 74 (1).

Return to footnote 19 referrer

Footnote 20

YCJA, supra note 3, s 38 (1).

Return to footnote 20 referrer

Footnote 21

YCJA, supra note 3, ss 3 and 38(2).

Return to footnote 21 referrer

Footnote 22

YCJA, supra note 3, s 38(2)(c)

Return to footnote 22 referrer

Footnote 23

YCJA, supra note 3, s 38(2)(d).

Return to footnote 23 referrer

Footnote 24

As discussed in section 9 of this directive concerning transitional provisions, Crown counsel must remain mindful that the sentencing principles of specific deterrence and denunciation apply only to offences committed after October 23, 2012.

Return to footnote 24 referrer

Footnote 25

YCJA, s 64.

Return to footnote 25 referrer

Footnote 26

Under s 2 of the YCJA, a serious violent offence is defined as murder, attempt murder, manslaughter or aggravated sexual assault.

Return to footnote 26 referrer

Footnote 27

YCJA, s 64 (1.1).

Return to footnote 27 referrer

Footnote 28

Ibid.

Return to footnote 28 referrer

Footnote 29

R v DB, 2008 SCC 25 [R v DB] at paras 41, 44, 47, 54, 62-65 and 76-77 provides some guidance as to the factors during the discussion of diminished moral blame worthiness.

Return to footnote 29 referrer

Footnote 30

YCJA, s 64 (1.1).

Return to footnote 30 referrer

Footnote 31

YCJA, supra note 3, s 110 (2)(a).

Return to footnote 31 referrer

Footnote 32

In R v DB, supra note 29, the Supreme Court of Canada found at paras 59 and 70 respectively that the presumption of the diminished moral culpability of young persons is not only a longstanding legal principle but a principle of fundamental justice. R v DB also provides some guidance regarding the factors and evidence Crown counsel can adduce to rebut this presumption in a given case, such as the age, maturity and capacity for moral judgment of the young person in question. The factors the Crown may wish to raise in seeking to rebut the presumption of diminished moral blameworthiness will often be the same factors referred to above under “Factors Relevant to Whether Crown counsel Should Apply for an Adult Sentence”.

Return to footnote 32 referrer

Footnote 33

YCJA, supra note 3, s 72.

Return to footnote 33 referrer

Footnote 34

YCJA, supra note 3, s 3(1)(b)(iii).

Return to footnote 34 referrer

Footnote 35

YCJA, supra note 3, ss 110-111.

Return to footnote 35 referrer

Footnote 36

YCJA, supra note 3, s 75.

Return to footnote 36 referrer

Footnote 37

YCJA, supra note 3, ss 110(2)(b) and 75 (2) respectively (in terms of the examples cited).

Return to footnote 37 referrer

Footnote 38

YCJA, supra note 3, ss 118 and 138.

Return to footnote 38 referrer

Footnote 39

YCJA, supra, note 3, s 125(2).

Return to footnote 39 referrer

Footnote 40

YCJA, supra note 3, s 129.

Return to footnote 40 referrer

Footnote 41

YCJA, supra note 3, at ss 40 (2)(iii) and (iv).

Return to footnote 41 referrer

Footnote 42

YCJA, supra, note 3, s 119(2)(a)

Return to footnote 42 referrer

Footnote 43

But by virtue of ss 119(4) and s 40 (2)(d)(iv), any extrajudicial measures used other than extrajudicial sanctions, such as a Crown caution, cannot be mentioned.

Return to footnote 43 referrer

Footnote 44

YCJA, supra note 3, s 119(9)(b). See also s 120 (6) of the YCJA regarding a similar provision in relation to RCMP records concerning offences listed in the YCJA schedule (which include trafficking, importing and exporting, and production offences under the CDSA).

Return to footnote 44 referrer

Footnote 45

While the Supreme Court of Canada has never ruled on this point, this is the combined effect of ss 119(9)(a) and 82(4) of the YCJA as discussed in R v Able 2013 OJ No 2675; 2013 ONCA. See also the 2013-06-27 PPSC Memo titled: Youth Records and MMPs under the CDSA.

Return to footnote 45 referrer

Footnote 46

YCJA, supra note 3, ss 119(4) and 119(2)(a).

Return to footnote 46 referrer

Footnote 47

YCJA, supra note 3, s 115 (1.1).

Return to footnote 47 referrer

Footnote 48

See YCJA, supra note 3, Preamble and ss 3 (1)(d)(ii),(iii) and (iv), as well as ss 11-12.

Return to footnote 48 referrer

Footnote 49

YCJA, supra note 3, s 3(1)(d)(iv).

Return to footnote 49 referrer

Footnote 50

YCJA, supra note 3, s 11.

Return to footnote 50 referrer

Footnote 51

See YCJA, supra note 3, Preamble, clause 5.

Return to footnote 51 referrer

Footnote 52

YCJA, supra note 3, ss 3(1)(d) (ii) and (iii).

Return to footnote 52 referrer

Footnote 53

YCJA, supra note 3, Preamble, clause 3, but more specifically s 12.

Return to footnote 53 referrer

Footnote 54

YCJA, supra note 3, ss 118 and 129. Pursuant to s 138 of the YCJA, it is an offence to further disclose youth records or information provided under the YCJA unless the YCJA permits it.

Return to footnote 54 referrer

Footnote 55

As per clause 195 of the Safe Streets and Communities Act, the following provisions do not apply to young persons who committed the offence before the coming into force of these amendments on Oct. 23, 2012:

The broader definition of a violent offence in s 2;
The new s 3(1)(a) of the YCJA;
The sentencing principles of denunciation and specific deterrence;
The expanded eligibility for custody under s 39(1)c) of the YCJA; and
The new wording of s 75 of the YCJA, which expands the circumstances where the identity of a young person who has received a youth sentence can be published.

Return to footnote 55 referrer

[ Previous | Table of Contents | Next ]

Date modified:: 2018-05-01

Language selection

Search and menus

Search