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YCJA Youth Sentencing December 2002 1 S.38(1) Purpose of Sentencing S. 38(1) The purpose of youth sentences is to hold a young person accountable for an.

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Presentation on theme: "YCJA Youth Sentencing December 2002 1 S.38(1) Purpose of Sentencing S. 38(1) The purpose of youth sentences is to hold a young person accountable for an."— Presentation transcript:

1 YCJA Youth Sentencing December S.38(1) Purpose of Sentencing S. 38(1) The purpose of youth sentences is to hold a young person accountable for an offence through the imposition of sentences that have meaningful consequences for the young person, and promote his or her rehabilitation and reintegration into society thereby contributing to the long-term protection of society.

2 YCJA Youth Sentencing December S.3(1)(c) S.3(1) The following principles apply in this Act: (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values; (ii) encourage the repair of harm done to victims and the community; (iii) be meaningful for the individual young person given his needs and the level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration; and (iv) respect gender, ethnic, cultural, linguistic and other differences and respond to the needs of aboriginal young persons and of young persons with special requirements

3 YCJA Youth Sentencing December S. 38(2)(a) Principles of Sentencing S. 38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles: (a) the sentence shall not result in a greater punishment than an adult would face for a similar offence;

4 YCJA Youth Sentencing December S. 38(2)(b) Principles of Sentencing S. 38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles: (b) the sentence must be similar to sentences imposed on other young persons in the region found guilty of the same offence committed in similar circumstances;

5 YCJA Youth Sentencing December S. 38(2)(c) Principles of Sentencing S.38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles: (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for the offence;

6 YCJA Youth Sentencing December S.38(2)(d) Principles of Sentencing S. 38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles: (d) sanctions other than custody that are reasonable in the circumstances shall be considered for a young person, with particular attention to the circumstances of aboriginal young persons;

7 YCJA Youth Sentencing December S. 38(2)(e) Principles of Sentencing S. 38(2) A youth sentence shall be imposed in accordance with the principles set out in S. 3 and the following principles: (e) subject to proportionality, the sentence must (I) be the least restrictive sentence capable of achieving accountability, (ii) be the sentence most likely to rehabilitate the young person and reintegrate him into society, and (iii) promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community.

8 YCJA Youth Sentencing December S.35 Referrals S.35 A youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

9 YCJA Youth Sentencing December S. 38(3)(a),(b), and (e) Sentencing Factors S.38(3) In determining a youth sentence, the court shall take into account: (a) the degree of participation of the young person in the commission of the offence; (b) the harm done to the victims and whether it was intentional or reasonably foreseeable; (e) the previous findings of guilt of the young person;

10 YCJA Youth Sentencing December S. 38(3)(c) and (d) Sentencing Factors S.38(3) In determining a youth sentence, the court shall take into account: (c) any reparation made by the young person to the victim or the community; (d) the time spent in detention by the young person as a result of the offence;

11 YCJA Youth Sentencing December S. 38(3)(f) Sentencing Factors S.38(3) In determining a youth sentence, the court shall take into account: (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purposes and principles of sentencing.

12 YCJA Youth Sentencing December S.39(1)(a), (b), and (c) Restrictions on the Use of Custody S.39(1) A young person shall not be committed to custody unless: (a) he has committed a serious violent offence; (b) he has failed to comply with non-custodial sentences; (c) he has committed an indictable offence which would attract an adult sentence of 2 years or more and there is a pattern of criminal convictions;

13 YCJA Youth Sentencing December S. 39(1)(d) Restrictions on the Use of Custody S. 39(1) A young person shall not be committed to custody unless: (d) the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

14 YCJA Youth Sentencing December S. 39(3) Considerations for Reasonable Alternatives to Custody S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider: (a) the alternatives that are available; (b) the likelihood that the young person will comply with a non-custodial sentence; (c) the alternatives to custody that have been used by young persons for similar offences.

15 YCJA Youth Sentencing December S.39(2) Alternatives to Custody S.39(2) If a young person is eligible to be considered for a custodial sentence under S.39(1)(a) to (c), the court shall not impose a custodial sentence unless the court has considered all alternatives to custody raised at the custody hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative to custody that is in accordance with the purpose and principles set out in S. 38.

16 YCJA Youth Sentencing December S. 39(9) Reasons Why Non- Custodial Sentence is Inadequate If a youth justice court judge imposes a sentence that includes a custodial portion, the court shall state the reasons why a non-custodial sentence is inadequate to achieve the purpose set out in S. 38(1), including, where necessary, why the case is an exceptional case as referred to in S.38(1)(d).

17 YCJA Youth Sentencing December S.39(3)(a) Considerations for Reasonable Alternatives to Custody S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (a) the alternatives to custody that are available;

18 YCJA Youth Sentencing December S.39(3)(b) Considerations for Reasonable Alternatives to Custody S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (b) the likelihood that a young person will comply with a non-custodial sentence, taking into account his compliance with previous non-custodial sentences;

19 YCJA Youth Sentencing December S.39(4) Previous Non-Custodial Sentence S.39(4) The previous imposition of a particular non-custodial sentence does not preclude the court from imposing the same or any other non- custodial sentence for another offence.

20 YCJA Youth Sentencing December S.39(3)(c) Considerations for Reasonable Alternatives to Custody S.39(3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to (c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

21 YCJA Youth Sentencing December S.39(5) Custody as a Social Measure Prohibited S.39(5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

22 YCJA Youth Sentencing December Sources of Information During Sentencing pre-sentence reports conferences victim impact statements medical, psychological and psychiatric reports submissions and representations

23 YCJA Youth Sentencing December S.40 Pre-sentence Reports YCJA S.40(2) a pre-sentence report shall include, to the extent it is relevant to S.38 and S.39: S.40(2)(c) a pre-sentence report shall include recommendations resulting from any conference referred to in S.41 S.40(2)(e) a pre-sentence report shall include any information that may assist the court YOA S.14(2) a pre-disposition report shall include: (no reference to principles or purposes of sentencing) (no reference to conferences) (no reference to a general inclusion of relevant information)

24 YCJA Youth Sentencing December S.41 Conferences S.41 When a youth justice court finds a young person guilty of an offence, the court may convene or cause to be convened a conference under S.19 for recommendations to the court on an appropriate youth sentence.

25 YCJA Youth Sentencing December S.19(1) Convening a Conference S.19(1) A youth justice court judge, the provincial director, a justice of the peace, a prosecutor or a youth worker may convene a conference for the purpose of making a decision required to be made under this Act.

26 YCJA Youth Sentencing December S.19(2) Conference Mandates S.19(2) The mandate of a conference may be to give advice on - appropriate extrajudicial measures - conditions for judicial interim release - sentences - review of sentences, and - reintegration plans

27 YCJA Youth Sentencing December S.722 Criminal Code Victim Impact Statements S.722(1) For the purpose of determining the sentence to be imposed on an offender, the court shall consider any statement that may have been prepared by a victim of the offence describing the harm done to, or the loss suffered by, the victim arising from the commission of the offence.

28 YCJA Youth Sentencing December S.34(1) Medical, Psychological, and Psychiatric Reports S.34(1) a youth justice court may, at any stage of the proceedings, require that the young person be assessed by a qualified person, (a) with the consent of the young person and the prosecutor; or (b) if the court believes a report is necessary and (i) the court has reasonable grounds to believe the young person is suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning or a mental disability, (ii) the young person’s history indicates a pattern of repeated findings of guilt, or (iii) the young person is alleged to have committed a serious violent offence

29 YCJA Youth Sentencing December S.34(2) Purpose of Report S.34(2) a youth justice court may make an order for a report under S.34(1) for the purpose of (c) making or reviewing a youth sentence

30 YCJA Youth Sentencing December S.42(1) Submissions and Representations S.42(1) a youth justice court shall, before imposing a youth sentence, may consider any recommendations submitted by a conference any pre-sentence report any representations made by the parties to the proceedings and their counsel any representations made by the parents of the young person any other relevant information before the court

31 YCJA Youth Sentencing December New Youth Sentencing Options reprimand intensive support and supervision order non-residential program deferred custody and supervision order custody and supervision order intensive rehabilitative custody and supervision order

32 YCJA Youth Sentencing December S.42(2)(a) Reprimand S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (a) reprimand the young person;

33 YCJA Youth Sentencing December S.42(2)(l) Intensive Support and Supervision Program S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (l) subject to the agreement of the Provincial director, order the young person into am intensive support and supervision program approved by the provincial director;

34 YCJA Youth Sentencing December S.42(3) Agreement of Provincial Director S.42(3) a youth justice court may make an order for an intensive support and supervision program or for a non- residential program only if the provincial director has determined that a program to enforce the order is available

35 YCJA Youth Sentencing December S.42(2)(m) Non-Residential Program S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (m) with the agreement of the provincial director, order the young person to attend a non-residential program approved by the provincial director, for a maximum of two hundred and forty hours, over a period not exceeding six months

36 YCJA Youth Sentencing December S.42(3) Agreement of Provincial Director S.42(3) a youth justice court may make an order for an intensive support and supervision program or for a non- residential program only if the provincial director has determined that a program to enforce the order is available

37 YCJA Youth Sentencing December S.42(2)(p) Deferred Custody and Supervision Orders S.42(2) when a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (p) make a deferred custody and supervision order that is for a period not to exceed six months, subject to the conditions set out in S.105(2) and any conditions set out in S.105(3) that the court considers appropriate

38 YCJA Youth Sentencing December S.42(5) Requirements for Deferred Custody and Supervision Order S.42(5) the court may make a deferred custody and supervision order if (a) the young person is found guilty of an offence that is not a serious violent offence; Note: this provision does not exist for adult offenders, who may receive a conditional sentence under S of the Criminal Code (b) it is consistent with the purpose and principles set out in S.38 and the restrictions on custody set out in S.39

39 YCJA Youth Sentencing December Custody and Supervision Orders deferred custody and supervision order regular custody and supervision order custody and supervision order for attempted murder, manslaughter, or aggravated sexual assault custody and supervision order for murder intensive rehabilitative custody and supervision order Under the YCJA, every period of custody is to be followed by a period of supervision.

40 YCJA Youth Sentencing December S.83(1) Purpose of Youth Custody and Supervision Orders S.83(1) The purpose of custody and supervision is to contribute to the protection of society by (a) carrying out sentences imposed by the courts through the safe, fair and humane custody and supervision of young persons; and (b) assisting young persons to be re-integrated into the community by providing effective programs while in custody and while under supervision.

41 YCJA Youth Sentencing December S.42(2)(n) Custody and Supervision Order S.42(2) When a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (n) make a custody and supervision order, ordering that a period be served in custody and a second period, that is one-half as long as the first period, be served under supervision in the community, the total of the sentence not to exceed two years, or three years if the maximum adult sentence is life.

42 YCJA Youth Sentencing December S.42(2)(o) Custody and Supervision Presumptive “a” Offences Other Than Murder S.42(2) When a youth justice court finds a young person guilty of an offence and is imposing a sentence, the youth court shall impose any one of the following sanctions or any number of them that are not inconsistent with each other: (o) in the case of attempted murder, manslaughter, or aggravated sexual assault, make a custody and supervision order for a specified period not exceeding three years from the date of committal that orders the young person into a continuous period of custody for the first portion of the sentence and to serve the remainder of the sentence under conditional supervision in the community in accordance with S.105;

43 YCJA Youth Sentencing December S.42(2)(q)(i) Custody and Supervision Order for First Degree Murder (q) (i) in the case of first degree murder, order a young person to serve a sentence not to exceed ten years, comprised of (A) a committal to custody, to be served continuously, for a period that must not exceed six years from the date of committal, and (B) a placement under conditional supervision to be served in the community in accordance with S.105,

44 YCJA Youth Sentencing December S.42(2)(q)(ii) Custody and Supervision Order for Second Degree Murder (q) (ii) in the case of second degree murder, order a young person to serve a sentence not to exceed seven years, comprised of (A) a committal to custody, to be served continuously, for a period that must not exceed four years from the date of committal, and (B) a placement under conditional supervision to be served in the community in accordance with S.105,

45 YCJA Youth Sentencing December S.42(2)(r) Intensive Rehabilitative Custody and Supervision Order S.42(2)(r) subject to S.42(7), make an intensive rehabilitative custody and supervision order (I) that is for a specified period that must not exceed (A) two years from the date of committal, or (B) if the young person is found guilty of an offence for which the punishment for an adult is imprisonment for life, three years from the date of committal

46 YCJA Youth Sentencing December S.47(7)(a) Conditions for Intensive Rehabilitative Custody and Supervision Order S.47(7) A youth justice court may make an order of intensive rehabilitative custody and supervision under S.42(2)(r) only if (a) (i) the young person has been found guilty of a presumptive “a” offence, or (ii) the young person has been found guilty of a presumptive “b” offence except that the young person does not need to be 14,;

47 YCJA Youth Sentencing December S.47(7)(b) Conditions for Intensive Rehabilitative Custody and Supervision Order S.47(7) A youth justice court may make an order of intensive rehabilitative custody and supervision under S.42(2)(r) only if (b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;

48 YCJA Youth Sentencing December S.47(7)(c) Conditions for Intensive Rehabilitative Custody and Supervision Order S.47(7) A youth justice court may make an order of intensive rehabilitative custody and supervision under S.42(2)(r) only if (c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan night reduce the risk of the young person repeating the offence or committing a serious violent offence; and

49 YCJA Youth Sentencing December S.47(7)(d) Conditions for Intensive Rehabilitative Custody and Supervision Order S.47(7) A youth justice court may make an order of intensive rehabilitative custody and supervision under S.42(2)(r) only if (d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation is appropriate.


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