Sentencing

• Author: Brock Jones/Sarah Leece/Mary Birdsell/Emma Rhodes
• Pages: 239-336



I. Introduction ............................................. 240

II. How the Criminal Code and YCJA Interact in

SentencingProceedings .................................... 243

III. Youth Sentencing Provisions ................................ 244

IV. Understanding the Presumption of Diminished Moral

Culpability ............................................... 257

V. Accountability ............................................ 260

VI. Right to Be Heard ......................................... 262

VII. Community-Based Youth Sentences and Sentencing Tools ........ 263

VIII. Youth Sentences Involving Custody .......................... 279

IX. Sentence Reviews ......................................... 299

X. Indigenous Young People .................................. 302

XI. Systemic Racism ......................................... 308

XII. Child Protection/Child Welfare System Involvement ............. 310

XIII. Mental Health, Learning, Brain Injury, and

Developmental Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

XIV. Adult Sentences .......................................... 314

XV. Case Conferences ......................................... 320

XVI. Ancillary Orders .......................................... 321

XVII. Considerations for Prosecutors .............................. 328

XVIII. Considerations for Defence Counsel .......................... 328

Appendix 10.1: FASD and the Youth Criminal JusticeSystem ...... 331

Sentencing

10

© 2024 Emond Montgomery Publications. All Rights Reserved.

Prosecuting and Defending Youth Criminal Justice Cases

I. Introduction

How can we hold young people accountable for their crimes? Should rehabilitation

through community-based dispositions take on an enhanced role in youth proceed-

ings? Or will that approach compromise public safety? What about incarcerating vio-

lent and recidivist young people? Is this eective, or does it simply guarantee future

criminal behaviour?

Under the Young Oenders Act (1984-2003),1 Canada had one of the highest rates

of incarceration of young oenders in the Western world, particularly for non-violent

oences.2 Even when compared with the United States, Canada’s treatment of youth

in its criminal justice system was startling. A Department of Justice study noted that

in 1997 Canada’s incarceration rate for young people was nearly 34percent higher

than that in the United States.3

In recognition that this approach was both costly and ineective, Parliament

enacted the Youth Criminal Justice Act.4 The intent of the legislation was to reduce

Canada’s incarceration rate for its young persons. The preamble to the YCJA clearly

states that Canada should “have a youth criminal justice system that… reserves its

most serious intervention for the most serious crimes and reduces the over-reliance

on incarceration for non-violent young persons.” As CharronJ of the Supreme Court

of Canada stated in RvBWP; R v BVN,5 “[t]he YCJA is a complex piece of leg-

islation that has substantially changed the Canadian youth justice system… [and]

brought about substantial changes in the general youth sentencing process.”6 The

new sentencing provisions, the Court noted, “have been characterized as ‘the most

systematic attempt in Canadian history to structure judicial discretion regarding the

sentencing of juveniles.’”7

In this regard, the Act has been an unqualified success. The percentage of young

people found guilty of a criminal oence who have been sentenced to custody has

decreased considerably since the YCJA came into eect in 2003, and Canada’s youth

incarceration rate continues to decline. This has occurred with no concordant rise in

youth crime rates; by contrast, youth crime rates in Canada continue to fall. Accord-

ing to Statistics Canada, there was a slight increase in the 2017 Youth Crime Severity

Index (YCSI) in 2017, which measures both the volume and severity of crime involving

1 RSC 1985, c Y-1 [repealed] [YOA].

2 Anthony Doob & Carla Cesaroni, Responding to Youth Crime in Canada (Toronto: University

of Toronto Press, 2010).

3 Department of Justice Canada, “Background for YCJA” (last modified 14 December 2021) at

Figure B2, online: Government of Canada <https://www.justice.gc.ca/eng/rp-pr/cj-jp/yj-jj/

back-hist/partb.html>.

4 SC 2002, c 1 [YCJA].

5 2006 SCC 27.

6 Ibid at para 19.

7 Ibid.

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter 10 Sentencing 

youth accused. But the YCSI still remains 38 percent lower than 10 years earlier.8 The

Department of Justice provides the following figures to help illustrate these trends.9

8 Statistics Canada, Police-Reported Crime Statistics in Canada, 2017, by Mary Allen, Juristat,

Catalogue No 85-002-X (Ottawa: Statistics Canada, 23 July 2018), online: <https://www150.

statcan.gc.ca/n1/pub/85-002-x/2018001/article/54974-eng.htm>.

9 Department of Justice Canada, “The Youth Criminal Justice Act Summary and Background”

(last modified 7 July 2021), online: Government of Canada <https://www.justice.gc.ca/eng/

cj-jp/yj-jj/tools-outils/back-hist.html>.

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

2009-102008-92007-82006-72005-62004-52003-42002-3

FIGURE . Number of Custody Sentences, Canada, - to -

Source: Canadian Centre for Justice Statistics, Youth Court Survey.

0%

5%

10%

15%

20%

25%

30%

2009-102008-92007-82006-72005-62004-52003-42002-3

FIGURE . Percentage of Guilty Cases Sentenced to Custody, Canada,

- to -

Source: Canadian Centre for Justice Statistics, Youth Court Survey.

© 2024 Emond Montgomery Publications. All Rights Reserved.