Sentencing Under the Youth Criminal Justice Act

• Author: Nicholas Bala, Sanjeev Anand
• Pages: 492-650

492

C H A P T E R 8

SENTENCING UNDER

THE

YOUTH CRIMINAL

JUSTICE ACT

A. STRUCTUR ING THE EXERCISE OF

SENT ENCING DISCR ETION

Under the Youth Criminal Justice Act1 adolescents are general ly subject

to the same substantive cr iminal laws as adult s, with the same offence

provisions and the same avai lable defences.2 Section 50 of the YCJA,

however, makes clear that the principles and prov isions of the Criminal

Code that apply to the sentencing of adults generally do not apply to

young offenders. Like the Young Offenders Act,3 the YCJA has exten sive

provisions governing the sentencing of young offenders, and these pro-

visions are central to the youth justice system. A fundamental pur pose

of juvenile justice legislation such as the YCJA is to en sure that those

adolescents who are guilty of criminal behaviour are dealt with by a

1 Youth Criminal Justice Act, S.C. 2002, c. 1 (in force 1 Apr il 2003) [YCJA], as

amended by S.C. 2012, c. 1 (in force 23 October 2012).

2 A number of quasi- criminal provi ncial laws create age-bas ed offences, such as

those that s et minimum ages for drink ing or driving, which ma y be prosecuted

in youth justice cour t.

3 Young Offenders Act, R.S.C. 1985, c. Y-1, enacted as S.C. 1980– 81–82– 83, c.

110 [YOA]. The Act was also amend ed in 1985 through An Act to amend the

Young Offenders Act, the Crimin al Code, the Penitentiary Act, an d the Prisons and

Reformatori es Act, R.S.C. 1985 (2d Supp.), c. 24, in force 1 September 1986 and

1 November 1986, and in 1995 th rough An Act to amend the Young Offenders Act

and the Criminal Code, S.C. 1995, c. 19.

Sentencing Under t he Youth Criminal Justice Act 493

different set of principles than t hose that apply to adults, that they are

provided with age-appropriate rehabilitative ser vices, and that they are

separated from adult offenders who might exploit or further corr upt

them.

The YOA had no explicit sentencing principles, and that Act’s Dec-

laration of Principle (section 3) only offered general guidance for senten-

cing; this resu lted in individual judges adopti ng differing approaches to

sentencing and signif‌icant variation in sentencing practices.4 The YCJA

sentencing regime provides far more guidance to youth court judges

than was given by t he YOA, and the YCJA has clea rly affected se nten-

cing practices, resulti ng in a sharp decrease in the numbers of youth in

custody in Canada. The YCJA places a clearer emphasis on accountabil-

ity and proportionality, has greater rest rictions on the use of custody,

and encourages community-based sentences. Ref‌lect ing the limited

maturity and accountability of adolescents, the Act also makes clear

that sentences imposed on young offenders are not to be as severe a s

the sanctions imposed on adults who have committed similar offences.

While rehabilitation remai ns an important concern for the youth justice

system under the YCJA, rehabilitative or child welfare concerns cannot

be invoked to justify a sentence that could not be justi f‌ied under ac-

countabilit y principles.

Under the YOA, while the Can adian youth justice system was

marked by great interprov incial variation in disposition patterns, the

country as a whole had one of the highest rates in t he world of use

of custody for adolescent offenders.5 The Preamble to the YCJA makes

clear that the Act is intended to address the concern about the overuse

of custody, proclaiming that a prime pur pose in enacting the legi sla-

tion was to have a youth crimin al justice system “that commands re-

spect, takes into account the intere sts of victims, fosters responsibility

and ensures accountability through meaningf ul consequences and effect-

ive rehabilitation and reintegration, and that reserves its most ser ious

intervention for the most serious cr imes and reduces the over-reliance on

incarceration for non-violent young persons.”6

The YCJA articulates explicit principles th at are intended to guide

the sentencing decisions of judges in the youth justice court s. The Dec-

4 Sanjeev Anand , “Sentencing, Judicial Dis cretion, and Juvenile Justice Part I”

(1998) 41 Crim. L.Q. 318–4 4.

5 See discus sion in Chapter 1. The YOA used the euphemi stic term “disposition”

to refer to a sanction i mposed by a youth court, to contra st with a sentence

imposed on an adult of fender under the Criminal Code. Ref‌lecting it s account-

ability approach , the YCJA uses the term “sentence.”

6 Emphases added.

YOUTH CRIM INAL JUSTICE LAW494

laration of Principle (section 3) makes clear that “fai r and proportion-

ate accountability” is the central principle for the sentencing of young

offenders. Section 38 offers a more detailed set of sentencing principles,

while section 39 places restrictions on the use of custodial sentences.

Section 24 of the YOA gave judges great discret ion in deciding whether

a custodial sentence should be imposed on a young person, prov iding that

a young offender should be held accountable through non-custodial dis-

position s “whenever appropriate.” By way of contrast, the restrictions on

the use of custody in section 39(1) of the YCJA are mandatory. Unless

one of the “gateway” conditions of section 39(1) of the YCJA is satisf‌ied, a

custodial sentence can not be imposed. Furt her, the YCJA makes clear that

a custodial sentence th at is more severe than warranted by accountability

principles should not be imposed to achieve rehabilitative objectives or

to address such social concer ns as a lack of housing or an abusive home

environment.

As will be discussed in this chapter, the 2012 amendments to the

YCJA7 add two more objectives of youth sentencing: “to denounce unlaw-

ful conduct” and to “deter the young person from committing offences”

(specif‌ic deterrence). There are also relatively minor amendment s to the

Declaration of Principle and a modest ex pansion of the situations in which

custody can be ordered under section 39. However, signif‌icantly, general

deterrence is not a factor in youth sentencing, and the basic principles

and provisions governing sentencing a re changed. As a result, it is not

expected that t he 2012 amendments will have a substant ial impact on the

trend under the YCJA to reserve custody for more serious and repeat of-

fenders. It is clear that in enacti ng the 2012 amendments Parliament did

not intend that Canada retur n to the high levels of youth custody under

the YOA.

Even though the YCJA gives clearer guidance for sentencing deci-

sions than the YOA , under the YCJA, a variety of professionals can e x-

ercise signif‌ica nt discretion. Sentencing remain s the most challenging

function of youth court judges — and for most youth, often the most im-

portant part of the youth justice proces s. Individual youth court judges

have signif‌icant di scretion and play a central role in the sentencing of

individual youth; however, other professionals and policy-makers also

have a great inf‌luence. Crown prosecutors have sign if‌icant discretion in

the types of sentences that they may seek, and probation off‌icers regu-

larly provide inform ation and recommendations t hat profoundly affect

sentences imposed. Provi ncial directors, probation off‌icers, and correc-

tional off‌icials al so have signif‌icant discretion in how to deal w ith young

7 S.C. 2012, c. 1 (in force 23 October 2012).