Evaluating the Youth Sentencing Regime in Comparison with Adult Court

AuthorAndrea EE Tuck-Jackson
Evaluating the Youth Sentencing
Regime in Comparison with
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

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