Sentencing under the Youth Criminal Justice Act

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 469-616

469

Cha pter 8

SENTENCING UNDER

THE

YOUTH CRIMINAL

JUSTICE ACT

a. StrUCtUr ING the eXerCISe OF

SeNteNCING DISCretION

Under the Youth Criminal Justice Act1 adole scen ts ar e gene ral ly sub ject t o

th e sam e sub sta nti ve cr imi nal law s as a dult s, w ith t he s ame o ffen ce pr o-

vi sions and t he sa me ava ilab le defe nces. 2 Sect ion 50 of the Act, h owever,

makes clear that the principles and provisions of the Criminal Code th at

apply to the sentencing of adults generally do not apply to young offend-

ers. Like the Young Offenders Act,3 the YCJA has extensive provisions

governing the sentencing of young offenders, and these provisions are

central to the youth justice system. A fundamental purpose of juvenile

justice legislation such a s the YCJA is to ensure that those adolescents

who are guilty of crim inal behav iour are dealt with by a dif ferent set of

principles th an those that apply to adults, that they are provided w ith

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

2 A number of quasi- criminal provi ncial laws create age-base d 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 amen ded in 1985 through An Act to amend the

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

Reformator ies 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.

YOUTH CRIM INAL JUSTICE LAW470

age-a ppropri ate reha bilitat ive ser vices, and th at they a re separ ated fr om

adult offenders who might exploit or further corrupt them.

The YOA ha d no ex plic it s ent enc ing pri nci ple s, a nd t hat Act ’s De cl ar-

ation of Principle (section 3) only offered general guidance; this resulted

in different judges adopting varying approaches to sentencing and sig-

nif‌icant vari ation in sentencing practices.4 The YCJA sentencing reg ime

provide s far more guid ance to youth cour t judges tha n was g iven by the

YOA, and the YCJA has clearly affected sentencing practices, resulting

in a sharp decrease in the numbers of youth in custody in Canada. The

YCJA p l ac es a cl ea r er em ph a si s on ac co un t ab il i ty a nd pr op or t io na l it y, ha s

greater rest rictions on the use of custody, and encourages community-

based sentences. Ref‌lecting the limited maturity and accountability of

adolescents, the Act al so makes cle ar 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, rehabili-

tative or child welfare concerns cannot be invoked to justify a sentence

that could not be justif‌ied under accountability principles.

Under the YOA, while the Canadian youth justice system was marked

by great interprovincial vari ation in disposition patterns, the countr y

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

adolescent offenders.5 The Preamble to the YCJA makes clear t hat t he

Act was intended to addres s the concern about the overuse of custody,

proclaiming t hat a prime purpose in enacting the new legislation is to

have a youth criminal justice system “that commands respect, takes

into account the interests of victims, fosters res ponsibility and ensure s

accountability through meaningful con sequences and effective rehabilita-

tion and reintegration, and that reserves its most serious inter vention for

the most seriou s crimes and reduces the over-reliance on incarceration for

non-violent young persons.”6

The YCJA articulates explicit principles that are intended to guide

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

laration of Pr inciple (section 3) makes clear that “fair and proportion-

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

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

4 Sanjeev Ana nd, “Sentencing, Judicial Dis cretion, and Juvenile Justice Par t I”

(1998) 41 Crim. L.Q. 318–4 4.

5 See discu ssion in Chapter 1. The YOA used the euphem istic 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. Ref‌lecti ng its account-

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

6 Emphases adde d.

Sentencing unde r the Youth Criminal Justice A ct 471

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

None of these provisions make any mention of deterrence, and it is now

clear that deterrence should not be a specif‌ic objective of youth senten-

cing. However, the fact that youths are held accountable in the youth

justice system may serve a deterrent function.

While sect ion 24 of the YOA gave judges great discretion, providing

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

dispo sitions “whenever appropriate,” the restrictions on the use of custody

in section 39(1) of t he YCJ A are mandatory. Unless one of the “gateway”

conditions of section 39(1) of the YCJA is s at is f‌ie d, a c u st od ia l s e nt en ce ca n-

not be imposed. Further, t he YCJA makes clear that a custodial sentence

th at is more seve re th an w arr ante d by a ccou ntab ili ty pr inc iple s shou ld no t

be imposed to achieve rehabilitative objectives or to address such social

concerns as a lack of housing or an abusive home environment.

Even though the YCJ A gives clearer guid ance for sentencing deci-

sions t han the YOA, under the YCJA, a variety of professionals can ex-

ercise signif‌icant discretion. Sentencing remains the most challenging

function of youth court judges — and for most youth, the most important

part of the youth justice proce ss. Individual youth justice court judges

have signif‌icant discretion and play a central role in the sentencing of

individual youth; however, other professionals and policy makers also

have a great in f‌luence. Crown prosecutors have sig nif‌icant di scretion in

the ty pes of sentences that they may seek, and probation off‌icers reg u-

larly provide i nformation and recommendations that profoundly affect

sentences imposed. Prov incial directors, probation off‌icers, and correc-

tional off‌icials can apply signif‌icant discretion in how to deal with young

offenders pl aced under their care or super vision. Furt her, the YCJA give s

provincial governments a wide discretion in the establishment and con-

trol of community-based dispositions and custodial facilities. As a result

of the variation in approach of different provincial government s to poli-

cies, programs, and facilities for young offenders — and the discretion

conferred upon a range of justice system professionals — much vari ation

in the treatment of individual young offenders who have committed the

same offence in similar circumstances persists across Canada.

B. YOUth SeNteNCING pr INCIpLeS

1) Principles and Purposes of Sections 3 and 38

The Declaration of Principle in section 3 of the YCJA has several pro-

visions that are relevant to the sentencing of young offenders and the