Sentencing Under the Youth Criminal Justice Act

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 400-499

400

A. STRUCTURING THE EXERCISE OF

SENTENCING DISCRETION

Under the Youth Criminal Justice Act1adolescents are generally subject

to the same substantive criminal laws as adults, with the same offence

provisions and the same available defences.2Section 50 of the Act,

however, makes clear that the principles and provisions of the Criminal

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

young offenders (with the exception of the most serious offences for

which adult sentence can be imposed on young offenders, a topic more

SENTENCING UNDER

THE

YOUTH CRIMINAL

JUSTICE ACT

chapter 8

1Youth Criminal Justice Act, S.C. 2002, c. 1 (royal assent February 19, 2002, to

come into force April 1, 2003), often referred to in this book as the YCJA.

2 There are a number of quasi-criminal provincial laws that create age-based

offences, such as those which set minimum ages for drinking or driving that

may be prosecuted in youth justice court. Some situations in which an adoles-

cent may have a defence to a criminal charge based on age include certain sexu-

al offences for which s. 150.1 of the Criminal Code, R.S.C. 1985, c. C-46, allows

a person under the age of sixteen years to raise the defence of the consent of the

complainant if the accused is not more than two years older than a complainant

who is under the age of fourteen. These provisions (sometimes referred to in the

United States as “statutory rape”) make it an offence for an adult or older ado-

lescent to have sexual relations with a child under fourteen years of age, even if

there is apparent consent, but allow for age-appropriate consensual sexual rela-

tionships.

fully discussed in Chapter 9). Like the Young Offenders Act,3the YCJA

has extensive provisions governing the sentencing of young offenders,

and these provisions are central to the youth justice system. The fun-

damental purpose of juvenile justice legislation such as the YCJA is to

ensure that those adolescents who are guilty of criminal behaviour are

dealt with by a different set of principles than those which apply to

adults, that they are provided with age-appropriate rehabilitative serv-

ices, and that they are separated from adult offenders who might

exploit or further corrupt them.

The YCJA sentencing regime provides more guidance to judges

than the Young Offenders Act, but the new Act is also more complex.

Part IV of the new Act sets out the principles and process for sentenc-

ing, and regulates the various sentencing options, while Part V deals in

greater detail with custodial sentences for young offenders. The YCJA

provides a more explicit set of sentencing principles and guidelines

than the YOA. The new Act places a clearer emphasis on accountabili-

ty and proportionality, has greater restrictions on the use of custody,

and encourages community-based sentences. Reflecting the limited

maturity and accountability of adolescents, the Act also makes clear

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

those sanctions imposed on adults who have committed similar

offences. While rehabilitation remains 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 jus-

tified on the basis of accountability principles.

Under the YOA, while the Canadian youth justice system was

marked by great interprovincial variation in disposition patterns, the

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

custody for adolescent offenders.4The Preamble to the YCJA makes

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

of custody, proclaiming that a prime purpose in enacting the new leg-

islation is to have a youth criminal justice system “that commands

Sentencing Under the Youth Criminal Justice Act 401

3Young Offenders Act, R.S.C 1985, c. Y-1, enacted as S.C. 1980–81–82–83, c. 110.

The Act was also amended in 1985 through An Act to amend the Young Offenders

Act, the Criminal Code, the Penitentiary Act, and the Prisons and Reformatories Act,

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

1986, and in 1995 through An Act to amend the Young Offenders Act and the

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

4 The YOA, above note 3, used the euphemistic term “disposition” to refer to a

sanction imposed by a youth court, to contrast with a sentence imposed on an

adult offender under the Criminal Code, above note 2. Reflecting its accountabil-

ity approach, the YCJA, above note 1, uses the term “sentence.”

respect, takes into account the interests of victims, fosters responsibil-

ity and ensures accountability through meaningful consequences and

effective rehabilitation and reintegration, and that reserves its most seri-

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

on incarceration for non-violent young persons” [emphases added].

The YOA had no explicit sentencing principles, with that Act’s

Declaration of Principle (section 3) offering only general guidance and

resulting in different judges adopting differing sentencing philosophies

and practices. For example, the Alberta Court of Appeal held that gen-

eral deterrence, the imposition of a punishment on one youth for the

purpose of deterring — or warning — other youths, should have no

role in the sentencing of young offenders under the YOA since it was

not explicitly mentioned in section 3 of that Act.5On the other hand,

the Quebec Court of Appeal held that general deterrence was an appro-

priate factor to consider, as an aspect of the protection of society.6

Despite the fact that theoretically the Alberta courts took no account of

general deterrence while those in Quebec should have been using this

factor to impose more severe custodial sentences, Alberta had a much

higher rate of use of custody under the YOA than did Quebec. This sug-

gests that judicial statements of principle in regard to the sentencing of

young offenders have only limited significance.

The Declaration of Principle and the sentencing principles provi-

sions of the YCJA articulate explicit principles that are intended to

guide the sentencing decisions of judges in the youth justice courts.

The Declaration of Principle (also section 3) makes clear that “fair and

proportionate 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. None of these provisions make any mention of deterrence as

a sentencing factor. It is submitted that, in sentencing young offenders

under the YCJA, judges should not make deterrence a specific objective

of sentencing. However, the fact that youths are held accountable in the

youth justice system should serve a deterrent function.

402 Youth Criminal Justice law

5R. v. G.(K.) (1986), 73 A.R. 376 (C.A.).

6R. v. L.(S.) (1990), 75 C.R. (3d) 94 (Que. C.A.). To some extent, this controver-

sy was resolved by R. v. M.(J.J.), [1993] 2 S.C.R. 421, where the Supreme Court

of Canada held that under the YOA, above note 3, general deterrence could be a

factor in the sentencing of young offenders, albeit one that is less important

than for adults.