The Youth Criminal Justice Act (YCJA) applies to all young persons in Canada who are twelve years of age and continues to apply until the day they turn eighteen years of age. The YCJA may also apply to a person who is over the age of eighteen if the offence was committed while he or she was under eighteen.
The YCJA ensures that young persons have the same rights as adults in the criminal justice system, including those guaranteed under the Charter of Rights and Freedoms. Some of these rights include:
- The right to be informed of one’s legal rights;
- The right to bail;
- The right to hire a lawyer and to obtain Legal Aid.
In addition, the YCJA sets out clear procedures for court proceedings, penalties, reviews, appeals and record keeping. These will be outlined in more detail later on.
Questioning of Young Suspects
If a young person is arrested and held in custody (i.e., detained) until appearance in court, the officer in charge at the time the young person is detained must give, either orally or in writing, to the parent or person who has a legal duty to provide for the young person, a notice of the arrest of the young person. The notice must include the address where the young person has been detained and the reason for the arrest.
A young person must be told that she is entitled to have a lawyer as well as a parent or guardian present during any questioning. A young person must also be told that she does not have to make a statement to the police, but that anything she does say can be used as evidence in court. If there is no parent or guardian available, the young person may have another responsible adult present when the police or any other person in authority questions her.
The young person can refuse to answer questions. If the young person agrees to answer questions, the police must first advise her of her rights and ensure that the young person understands those rights. The young person will then be required to sign a form indicating that the rights have been read to her, that she understands them, and that she is prepared to make a statement anyway.
Before charging a young person with a crime, a police officer may use his or her discretion to divert the young person from the formal criminal court system and apply an extra-judicial measure instead. Extra-judicial measures may include: take no further action, warn the young person, administer a caution, or refer the young person to a program or agency in the community that may assist the young person not to commit offences.
If a charge is laid, a Crown Prosecutor has the discretion to provide a caution to the young person or to refer the young person to an extrajudicial sanctions program. An extrajudicial sanctions program may include a period of supervision and conditions, such as providing apologies to the victims, completing community service, or attending intervention programs. The young person must freely consent to being subject to the sanctions and be willing to accept responsibility for the offence. The charges are withdrawn when the young person returns to court after completing the extrajudicial sanctions program.
Right to Counsel
The YCJA states that every young person, at any stage of the youth justice process, has the right to speak to a lawyer without delay. If you cannot afford a lawyer, an application may be made to Legal Aid for a lawyer. Legal Aid is not free and the young person’s parents will receive a notice of the amount owing for the lawyer’s services. If Legal Aid has advised the young person that she does not qualify for assistance, the young person may ask the judge to order that a lawyer be appointed to represent her.
Appearance in Court
A young person who is charged with an offence and who is not taken into custody or who is released from custody will be issued a document that requires him or her to appear in court. The document may be a Promise to Appear, Appearance Notice, or a Recognizance.
Remember that the parents or guardians of young persons may be required to attend the court proceedings too. Generally, the parent or guardian will be required to give evidence to prove that the young person is under the age of eighteen. If a parent or guardian is not available, there are other ways to prove that the accused is a young person within the meaning of the Youth Criminal Justice Act and it will be up to the court and the Crown counsel to ensure that this is done.
Court proceedings will take place to determine whether the youth is guilty or not. The youth court is an open court which means that any member of the public is free to attend unless the judge decides it is best to keep someone from the courtroom. The youth court must observe all the rules of evidence, which includes the rule that any confession must be voluntary. Ask your lawyer or Youth Legal Aid counsel for more information on this.
If the young person is found guilty, the judge can consider a number of possible penalties. The judge may feel that a presentence report would be helpful in choosing a consequence that is right in the circumstances. The judge must order a presentence report if he or she is considering placing a young person in custody. A pre-sentence report is a document that contains information about the youth’s character, attitudes, previous conduct, home life, activities, and future plans. The report is prepared by a probation officer who has interviewed the young person, his or her parents, the victim (if there is one), and any other person who may be able to provide helpful information.
The penalties that a judge may order are called dispositions. If the young person receives an absolute discharge, he or she will be free to go without conditions and the charge will not remain on his or her criminal record. An absolute discharge is only available if it is in the accused person’s best interest and not contrary to the interest of the public. A discharge may also occur after the young person has followed conditions that are imposed on him or her for a period of time that the judge considers appropriate.
The young person may receive a stern warning from a judge that is referred to as a reprimand.
The young person could receive a fine up to a maximum of $1,000 or be ordered to compensate the victims by paying them money or performing a service for them personally or for the community in general. This type of compensation is more commonly known as restitution.
If the youth court finds that a stricter sentence is required, the young person may be placed in custody. There are two types of custody under the YCJA. “Open custody” refers to community residential centres, group homes, child care institutions, and forest or wilderness camps. “Secure custody” refers to special facility for the imprisonment of young offenders. The young person must never be jailed with adult offenders unless he or she has been tried under the adult court system.
A convicted young person may appeal the finding of guilt and/or the sentence imposed to the Court of Appeal of the province. A further appeal to the Supreme Court of Canada can only be made if the Court decides to hear the appeal.
The Youth Record
There are strict provisions in the YCDA for the creation, maintenance, confidentiality, and destruction of criminal records of young persons. There are four types of youth records: Youth Justice Court records, Police records, government records, and records that are collected by a person or organization for reasons such as the administration of sentences.
The YCJA sets out who may have access to a young person’s record. The period during which time those persons have access to the records will be different depending on how the charges were resolved. For instance, if the young person receives an extrajudicial sanction, the access period will end two years after the youth agrees to the sanction. If the young person receives an absolute discharge, the access period ends one year after the young person was found guilty. At the end of the access period, the records are either destroyed or placed in an archive.
These rules do not apply to the records of young persons who have received adult sentences.