Youth Criminal Laywer (YCJA) in Brampton

The preamble to the YCJA contains a number of key principles that govern the purpose and aim of the Act. Some of the key principles are summarized below:

• The youth justice system should foster responsibility and ensure accountability through meaningful consequences to the youth;
• The youth justice system should hold young persons accountable through measures that are proportionate to the seriousness of the offences and the degree of responsibility of the young person;
• The youth justice system should promote rehabilitation and the reintegration of young persons who have committed offences;
• The youth justice system should support the prevention of crime by referring young persons to programs and agencies in the community in order to address the circumstances underlying their behaviour;
• The youth justice system should provide enhanced procedural protections, as well as the right to privacy.

The key principles noted above demonstrate how the YCJA seeks to promote the rehabilitation and reintegration of youths back into society. It is also generally accepted that youth have a diminished level of moral culpability and must therefore be dealt with separately under their own Act. In practice, this means that youths who are charged with a criminal offence may be diverted away from the Criminal Justice System by way of undertaking an Extrajudicial Sanction (EJS). EJS are programs specifically approved by the Attorney-General, and while requiring the youth to accept responsibility for their actions, participation in an EJS does not equate to an admission of guilt.

Furthermore, youth are much less likely to be subject to pre-trial detention. Following the amendments to the YCJA in 2012, the Court may only order pre-trial detention of a youth where:

the youth has been charged with a serious offence (an offence for which an adult would be liable to imprisonment for five years or more) or has a history that indicates a pattern of either outstanding charges or findings of guilt;

one of the following grounds exists:

• there is a substantial likelihood that, if released, the youth will not appear in court when required;
• detention is necessary for public protection, having regard to the circumstances, including whether there is a substantial likelihood that the young person will, if released, commit a serious offence; or
• if the youth has been charged with a serious offence and neither (i) nor (ii) applies (i.e., detention is not necessary to ensure that the youth appears in court or to protect the public), but there are exceptional circumstances that justify detention as necessary to maintain confidence in the administration of justice; and

releasing the youth with conditions would not be sufficient to address the court’s concern about releasing the youth.

For example, in R. v. X.Y., [2020] O.J. No. 3093, the accused, a 15 year old at the time of the offence, was charged with several Firearms-related offences after allegedly participating in a gun fight. These charges were considered “serious”. The Court also affirmed that to be considered to have a “history that indicates a pattern of either outstanding charges or findings of guilt”, a youth must have a minimum of 3 prior findings of guilt, unless the court can find that the offences are so similar that a pattern can be found in only two prior convictions, including outstanding charges. The accused had outstanding charges of Robbery and Drug Trafficking in Toronto and Saskatchewan. Given the seriousness and repetitive behaviour of these charges, and the fact that the proposed sureties were found not have sufficient influence or control over the accused, the Court ordered pre-trial detention (denied bail).

There are also limited circumstances in which a youth can be sentenced to a term of custody on a finding of guilt; generally speaking, a youth justice court cannot commit a young person to custody. The most common exception to this rule is where the young person has committed a “violent offence”, which is defined in the YCJA as:

(a) an offence committed by a young person that includes as an element the causing of bodily harm;

(b) an attempt or a threat to commit an offence referred to in paragraph (a); or

(c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

However, even where a youth has committed a “violent offence”, the Court must consider all alternative to custody raised at the sentencing hearing that are reasonable in the circumstances, before imposing a custodial sentence. For example, in R. v. D.D., [2021] O.J. No. 1544, the accused pleaded guilty to charge of Robbery, which is a “violent offence”. The accused was diagnosed with two psychiatric disorders and had past traumatic events which played in his involvement of the incident. Due to the accused’s success in rehabilitating himself through counselling, the Court found that rather than a sentence of a short custodial sentence, a sentence of deferred custody with a supervision order was more appropriate.

Furthermore, if a youth of 14 years or older is charged with a “serious violent offence”, the prosecutor must consider applying to the court for an adult sentence. If the prosecutor decides not to apply for an adult sentence, the prosecutor must advise the court. An adult sentence can only be imposed if (a) the prosecution rebuts the presumption that the young person has diminished moral blameworthiness or culpability and (b) a youth sentence would not be of sufficient length to hold the young person accountable. A ”serious violent offence” is any of the following offences: First-degree murder or Second-degree murder; Attempting to Commit Murder; Manslaughter; or Aggravated Sexual Assault.