Sentencing Young Persons

• Author: Brock Jones/Emma Rhodes/Sarah Leece
• Pages: 379-466

379

Sentencing

Young

Persons

Brock Jones, Emma Rhodes,

and Sarah Leece

11

I. Introduction.............................................. 380

II. Interaction Between the Criminal Code and YCJAin Sentencing

Proceedings.............................................. 380

III. Youth Sentencing Provisions ................................ 381

IV. Sentencing Tools .......................................... 399

V. Available Sanctions ........................................ 407

VI. Sentence Reviews ......................................... 431

VII. Indigenous Young People ................................... 434

VIII. Systemic Racism .......................................... 439

IX. Child Protection/Child Welfare SystemInvolvement.............. 440

X. Mental Health, Learning, Brain Injury, andDevelopmentalIssues .... 441

XI. Adult Sentences........................................... 445

XII. Case Conferences ......................................... 451

XIII. Ancillary Orders ........................................... 452

XIV. Considerations for Prosecutors .............................. 457

XV. Considerations for Defence Counsel .......................... 458

Appendix 11.1: FASD and the Youth CriminalJusticeSystem............. 461

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380Sentencing: Principles and Practice

I. Introduction

How young people should be held accountable for their crimes remains one of the

most complicated issues in Canadian sentencing law. While there is an emphasis on

rehabilitation and reintegration through community-based sanctions in youth pro-

ceedings, other sentencing principles remain vitally important. Violent and recidi-

vist young people, in particular, may still be subject to significant penalties, including

lengthy custodial sentences. Yet many of the principles that underlie the adult sen-

tencing provisions of the Criminal Code either do not apply in youth court or apply

with significant restrictions. Understanding the dierences between adult and youth

sentencing law is thus essential for both Crown and defence counsel.

The Youth Criminal Justice Act1 provides for a unique and separate sentencing

regime for young people. This chapter will explain the sentencing provisions of the

YCJA. It will thoroughly review both the principles animating youth sentencing and

also the very dierent sentencing options that exist for young persons as compared

with adult oenders. Expertise in these provisions—part 4 of the YCJA—is abso-

lutely essential for both Crown prosecutors and defence counsel. Counsel should

have no misapprehensions—the YCJA’s sentencing provisions are fundamentally

dierent from those found in the Criminal Code and often diverge in surprising ways.

Competent and eective representation of young people will require counsel to have

a thorough command of this area of youth criminal justice law.

II. Interaction Between the Criminal Code and

YCJAin Sentencing Proceedings

Section 50 of the YCJA all but entirely eliminates the applicability of these provisions

from youth sentencing proceedings. The section states that but for adult sentencing

decisions (which will be addressed later in this chapter), the provisions of part XXIII

(sentencing) of the Criminal Code do not apply in respect of proceedings under the

YCJA. A few exceptions to that general prohibition exist that are worth noting here:

• section 718.2(e), which requires consideration of the sentencing principles

for Indigenous oenders (Gladue considerations; see Section VII, Indigenous

Young People); and

• sections 722, 722.1, and 722.2 respecting victim and community impact state-

ments, as judges must consider these in youth justice proceedings as well.

In R v BWP; R c BVN,2 the Supreme Court of Canada addressed whether or not

section 50 precluded reliance on adult sentencing principles not expressly incorpo-

rated into the YCJA. In that case, the Supreme Court had to decide whether general

1 SC 2002, c 1 [YCJA].

2 2006 SCC 27.

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Chapter 11 Sentencing Young Persons 381

deterrence, a principle of sentencing applicable in adult cases, applied in youth cases.

BWP was found guilty of manslaughter. The Supreme Court held that for adults,

when “general deterrence is factored in the determination of the sentence, the

oender is punished more severely, not because he or she deserves it, but because the

court decides to send a message to others who may be inclined to engage in similar

criminal activity.”3 Under the Young Oenders Act,4 general deterrence had been a

legitimate objective in sentencing young oenders. But in R v BWP; R c BVN, the

Court held, as matter of statutory interpretation, that the YCJA did not expressly

incorporate the relevant provision of the Criminal Code, and thus general deterrence

had no role to play in youth sentencing proceedings.5

Prior to the 2012 amendments to the YCJA, the same reasoning had been held when

applying the adult sentencing principle of denunciation to youth because it too was not

incorporated into the YCJA via section 50.6 Counsel should thus remember, but for the

limited exceptions expressly noted in section 50 of the YCJA, that the sentencing provi-

sions of the Criminal Code have no role to play in youth justice proceedings.

Knowing the retention periods and consequences of having either a sealed or

accessible youth court record is key when crafting an appropriate youth sentence.

When representing an adult serving a youth sentence, counsel should also be mind-

ful of the Criminal Code “merger provisions.” In those cases, section 743.5(1) of the

Criminal Code and section 139(1) of the Corrections and Conditional Release Act 7con-

vert the remaining portion of a youth sentence into an adult sentence and merge the

sentences into one to be served in an adult institution. The oender is then eligible

for conditional release from prison under various provisions of the Corrections and

Conditional Release Act.

III. Youth Sentencing Provisions

A. Fundamental Principles

Section 3(1) of the YCJA’s Declaration of Principle provides that the criminal justice

system for youths “must be separate from that of adults”8 and that the youth criminal

justice system is intended to “protect the public”9 by

3 Ibid at para 2.

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

5 BWP; BVN,supra note 2 at paras 22-26, 48.

6 See R v T(C),2006 MBCA 15; R v AA,2013 BCCA 202. But note that the Safe Streets and

Communities Act, SC 2012, c1, in force since 23 October 2012, has returned specific deterrence

as a discretionary principle of sentencing under the YCJA: see s 38(2)(f).

7 SC 1992, c 20.

8 YC JA, s3(1)(b).

9 YCJA, s3(1)(a).

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