Evaluating the Youth Sentencing Regime in Comparison with Adult Court

• Author: Andrea EE Tuck-Jackson
• Pages: 315-337

315

CHAPTER SIXTEEN

Evaluating the Youth Sentencing

Regime in Comparison with

AdultCourt

Andrea EE Tuck-Jackson

Most jurisdictions have enacted sentencing regimes for young persons

that are separate and distinct from that which responds to adult oend-

ing. Each regime, regardless of its distinctive features, must generate a

legitimate sentence and operate to preserve that sentence’s legitimacy in

a given case. A sentence’s legitimacy — measured according to its fair-

ness and eectiveness — derives from its retrospective and prospective

qualities. A sentence is retrospective in that it is the product of judicial

consideration of the gravity of the oence and the subject’s degree of

moral blameworthiness in relation to its commission. ese are static

factors. In contrast, a sentence is prospective to the extent that, as a

mechanism to promote and facilitate a change in attitude and behav-

iour, it must adapt to the subject’s shifting rehabilitative potential right

up until the sentence’s expiry. e process of rehabilitation is inherently

dynamic. In the result, a sentence should have the capacity to build on,

and not hinder, the subject’s progress towards rehabilitation, embrace

new rehabilitative opportunities, address setbacks, and self- enforce in the

face of non-compliance.

Among a collection of sentencing options and approaches, what

generates an “ideal sentence” in a given case? A sentence is fair and will

316 |  

be eective when it () is founded on accurate and complete information

about the oence and the subject; () takes into account well-conceived

and persuasive advocacy by counsel; () is the product of the court’s

careful and considered selection from the widest variety of options

following the application of all relevant sentencing principles and an

assessment of each reasonable option as against its underlying object-

ive(s) and the stated purpose of sentencing; and () has the capacity to

respond to the subject’s changing needs while they are bound by it.

e Canadian criminal justice system sentences young persons

under part  of the Youth Criminal Justice Act. It sentences adult oend-

ers under parts XXIII and XXIV of the Criminal Code. Within the

YCJA’s Declaration of Principle, section ()(b) states that “the criminal

justice system for young persons must be separate from that of adults.”

e youth and adult sentencing regimes are separate from one another

in the sense that their subjects are sentenced in separate proceedings

and, generally speaking, serve their sentences apart from one another.

Each regime has a distinct foundation or theoretical approach to sen-

tencing. In addition, each has its own structure by way of mechanisms

for gathering information about the subject, sentencing options, and

approaches to sentence enforcement and sentence adaptability while it

 SC , c  [YCJA].

 RSC , c C- [Criminal Code].

 Of note, YCJA, above note , s , expressly curtails (though refrains from eliminating

altogether) the application of the provisions of the Criminal Code to youth sentencing.

 YCJA, above note , s .

 Space does not permit a full discussion of the mechanisms of sentence enforcement.

Within the youth sentencing regime, non-compliance with certain non-custodial sanc-

tions is addressed through the laying of a charge under s  of the YCJA, above note

. Non-compliance with non-custodial sanctions, listed in ss ()(k) & (l) of the YCJA,

may also be addressed through a mechanism internal to the sanction. See the YCJA,

above note , ss (), ()(c), and (). Non-compliance with a deferred custody and

conditional supervision order, or the supervision portion of any form of a custody and

supervision order, is also addressed through a mechanism internal to the sanction. See

the YCJA, ss () & () and () & (). Within the adult context, non-compliance

with a probation order is addressed through the laying of a charge under the Criminal

Code, above note , s ., or through a mechanism internal to the sanction. See the

Criminal Code, ss () and .(). Non-compliance with a long-term supervision

order is addressed through the laying of a charge under the Criminal Code, s .().

Non-compliance with a conditional sentence order is addressed through a mechanism