The Last Chance Sanction in Youth Court: The Deferred Custody and Supervision Order

• Author: Peter J. Carrington and Julian V. Roberts
• Pages: 135-162

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 

e Last Chance Sanction in Youth Court:

e Deferred Custody and Supervision Order

 .    . 

Reducing t he use of custody a s a sanction in youth court was a central, stat-

ed objective of the Youth Criminal Just ice Act (YCJA), and resea rch has now

demonstrated that the Ac t has ach ieved this goal. Signi cant reductions in

admissions to custody have been achieved by emphasizing the import ance of

penal rest raint and by creat ing a number of stat utory bars to the imposition

of a term of custody i n youth court.

With respect to the principle of restra int regardi ng the u se of c ustody,

the Preamble to the YCJA makes clear the intent of Parliament that Canada

should “ have a yout h crimi nal justice system that reserves its most serious

interventions for the most serious crimes and reduces the ov er-reliance on in-

carceration for non-violent young persons.” e YCJA provides a detai led set

of sentencing principles for youth court judges to apply, includi ng an explicit

acknowledgment of restra int with respect to the use of custody as a sanction.

us sect ion ()(d) states that “all available sanctions other than custody

 SC , c .  [YC JA]; see Canada, De partment of Jus tice, “Why D id the Govern-

ment Introd uce New Youth Justice L egislation? ” (), online: ww w.justice.gc.c a/

eng/pi/yj-jj/ycja-lsjpa/why-pourq.html.

 For an analysi s of trends in th e use of custody i n youth court , see Nicholas Bal a,

Peter Car rington, & Ju lian V. Roberts , “Evaluatin g the Youth Crimina l Justice Ac t

aer Five Year s” () : Can J Crim inol & Crim Just ice . As wit h all our wr it-

ing on the su bject of youth jus tice, this c hapter has bene ted from the schol arship

of Nick Bal a, although t he views exp ressed here are sole ly those of the aut hors.

 .       . 

that are reason able in the circumst ances must be considered with pa rticular

aention to the circums tances of aboriginal young persons .” I n addition, the

Act creates a number of statutory impediments to the i mposition of a cus-

todial sentence in youth court. For example, section () establishes four

“gateways” to custody. Unless the case appear ing for sentencing conforms to

one or more of these criteria, a ter m of custody may not be imposed.

ere is also a nal alternative available to courts. If the court h as fol-

lowed a ll the principles and the case ha s met t he threshold for a custodial

sentence, an addit ional non-cu stodial sanction is avai lable to the c ourt to

avoid commi ing the defendant to custody: t he Deferred Custody a nd

Supervis ion Order (DCSO). Despite the import ance and innovat ive nature

of the DCSO, researchers and youth justice texts have paid sca nt aention to

this sanction  new to youth courts as a result of the YCJA. is is surpris-

ing, in lig ht of the potential of the DCSO to reduce the use of custody yet

also to generate public and professional cr iticism if it is imposed for a serious

crime of violence.

e Defer red Custody a nd Supervision Order can be fu lly understood

only in relation to the Custody and Supervision Order (C&SO) and the

conditional sentence of i mprisonment (at the adult level). e relationship

between the C&SO and the DCSO is apparent: t he laer is a deferred ver -

sion of t he former. But it is also necessary to consider the conditional ter m

of imprisonment because the DCSO share s some fe atures with that sanction

(although with dierences that wi ll be brought out in the course of this chap-

ter). e C&SO is a blended sentence t hat incorporates a period in custody,

followed by per iod of community super vision. e components of the CSO

conform to a two to one ratio, and combined may not exceed two years.

us the maximum custodial term that may be imposed is sixteen months ,

to be followed by eight months of com munity superv ision with conditions.

is chapter ex plores the theory a nd practice of th is novel youth court

sanction, which has been available to youth courts since . e chapter

is div ided into two par ts. Section A d iscusses the s tatutory framework of the

sanction, noting the pa rallels between the DCSO and it s analogous sanction

at the adult level, the Conditional Sentence of Imprisonment (CSI). Com-

mentary to date has simply acknowledged that a DCSO is a youth court ver-

 Julian V. Rober ts, e Virtu al Prison: Co mmunity Cus tody and the Evolut ion of

Imprisonment (Cambridge: Ca mbridge Unive rsity Press , ) at –.

 Or three y ears for cert ain serious o ences.