Amendments to the Youth Criminal Justice Act: Bill C-10, Part 4

Introduction First substantive amendments to YCJA since its passage 10 years ago. Parts of YCJA most affected by the amendments: 1) Pre-trial detention 2) Youth sentencing 3) Adult sentencing 4) Publication

Background: Experience under the YCJA Most of Parliament’s objectives in passing the YCJA are being achieved. Since the YCJA came into force in 2003: Charging has decreased significantly Police diversion has increased significantly Between 2002/03 and 2009/10, court cases decreased by 26% During the same period, custody sentences declined by 64% (Source: Canadian Centre for Justice Statistics)

Outline A. Definitions B. Declaration of Principle C. Grounds for Pre-trial Detention D. Youth Sentencing E. Adult Sentencing F. Lifting Publication Ban G. Police Records of Extrajudicial Measures

A. Definitions Presumptive offence Serious violent offence (s. 2)

Presumptive Offence Amendments repeal all of the presumptive offence provisions, including the definition of presumptive offence. In 2008, the Supreme Court of Canada, in R. v. D.B., struck down as unconstitutional the presumptive offence provisions that shift the onus to the youth to show: (a) why an adult sentence should not be imposed and (b) why the publication ban should not be lifted. (R. v. D.B., [2008] 2 SCR 3)

Serious Violent Offence (s. 2) YCJA: an offence in which the youth causes or attempts to cause serious bodily harm. C-10: murder, attempted murder, manslaughter or aggravated sexual assault.

Serious Violent Offence (s. 2) Offences in amended definition of SVO are the offences that are currently included in the definition of presumptive offence, paragraph (a). “Serious violent offence” is not used in relation to deferred custody and supervision orders (s. 42(5)). DCSOs will remain unavailable for offences in which a youth causes or attempts to cause serious bodily harm.

Violent Offence (s. 2) YCJA: There is currently no definition of “violent offence in the YCJA. In the 2005 case of R. v. C.D., the Supreme Court of Canada defined “violent offence” as an offence in which the youth causes, attempts to cause or threatens to cause bodily harm. (R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668) C-10: (a) an offence 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 which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Violent Offence (s. 2) The definition of violent offence has been expanded to include “endangering life or safety” of a person. The definition applies throughout the Act, including in relation to: (a) restrictions on custody sentences; and (b) lifting the publication ban.

B. Declaration of Principle Protection of the public (s. 3(1)(a)) Diminished moral blameworthiness (s. 3(1)(b))

Declaration of Principle: s. 3(1)(a) YCJA: The youth justice system is intended to (i) prevent crime; (ii) rehabilitate and reintegrate; and (iii) ensure meaningful consequences in order to promote long-term public protection. C-10: The youth justice system is intended to protect the public by (i) holding youths accountable through proportionate measures; (ii) promoting rehabilitation and reintegration; and (iii) supporting prevention of crime by referring youths to community programs.

Declaration of Principle: s. 3(1)(b) YCJA: the youth justice system must be separate from that of adults. C-10: the youth justice system must be separate from that of adults and must be based on the principle of diminished moral blameworthiness or culpability.

Declaration of Principle (s. 3(1)(b)) Amendment reflects a fundamental principle of justice recognized by S.C.C. in R. v. D.B. Amendment reinforces the current YCJA principle that accountability must be consistent with the greater dependency of youths and their reduced level of maturity. (s.3(1)(b)(ii))

C. Grounds for Pre-trial Detention

Grounds for Pre-trial Detention: s. 29(2) YCJA: (1) Grounds for detention in Criminal Code apply. (2) Presumption against detention under public safety ground if custody sentence could not be imposed under YCJA s.39. C-10: (1) Establishes in the YCJA grounds for detention that are a modified version of the Criminal Code grounds. (2) Repeals presumption against detention based on s.39 criteria for custodial sentences.

Grounds for Pre-trial Detention: s. 29(2) C-10: A court may detain a youth only if: the youth has been charged with a serious offence or the youth has a history of either outstanding charges or findings of guilt; (b) the judge or justice is satisfied: (i) that there is a substantial likelihood that, if released, the youth will not appear in court; (ii) that 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

Grounds for Pre-trial Detention: s. 29(2) (iii) where the youth has been charged with a serious offence and detention is not justified under (i) or (ii), that there are exceptional circumstances that justify detention as necessary to maintain confidence in the administration of justice; and (c) releasing the youth with conditions would not be sufficient to address the court’s concern about releasing the youth. S.29(3): The onus of satisfying the judge or justice is on the Attorney General

Grounds for Pre-trial Detention: C-10 defines “serious offence” as an indictable offence for which the maximum adult sentence is 5 years or more. Amendment differs from the Criminal Code provisions: A serious offence, prior offences or outstanding charges are required for detention under the YCJA. “Primary ground”: substantial likelihood of not appearing is required. “Secondary ground”: substantial likelihood of a serious offence is required. “Tertiary ground”: offences other than serious offences are excluded. Onus on the Crown in all cases (no reverse onus).

D. Youth Sentencing Deterrence and denunciation (s. 38(2)) Criteria for custody: violent offence (s.39(1)(a)) Criteria for custody: pattern (s. 39(1)(c))

Deterrence and Denunciation: s.38(2) YCJA: Courts have found that deterrence and denunciation are not youth sentencing objectives under YCJA. (R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941; R. v. C.T., [2005] M.J. No. 515 (C.A.)) C-10: Subject to proportionality, specific deterrence and denunciation may be objectives of a youth sentence.

Deterrence and Denunciation Amendment does not include the objective of general deterrence. Amendment permits, but does not require, deterrence and denunciation to be objectives of a sentence. The amendment does not allow the use of these objectives to result in a disproportionate sentence. The use of these objectives must be consistent with other s. 38 sentencing provisions, which are mandatory (e.g. promote rehabilitation; least restrictive alternative; parity).

Restrictions on Custody: s. 39 YCJA: A custody sentence is prohibited unless one of four criteria is met: (a) violent offence; (b) failure to comply with non-custodial sentences; (c) indictable offence and a pattern of findings of guilt; or (d) exceptional case. If one of the four criteria is met, the court cannot impose custody unless the court determines that there is no alternative to custody that is in accordance with the purpose and principles of sentencing. The amendments change two of the criteria: (a) violent offence (c) pattern of offending. The amendments will be applied in the context of the YCJA’s purpose and principles of sentencing, which clearly emphasize the importance of both proportionality and rehabilitation.

Restrictions on Custody: s. 39(1)(a) Violent Offence C-10 definition of violent offence: an offence 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 which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.

Restrictions on Custody: s. 39(1)(c) Pattern YCJA: Youth has committed an indictable offence …. and has a history that indicates a pattern of findings of guilt. C-10: Youth has committed an indictable offence …. and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both.

E. Adult Sentencing Duty of Crown (s. 64) Test for adult sentence (s. 72) Placement after adult sentence (s. 76(2))

Adult Sentencing: Duty of Crown (s. 64) C-10: If a young person is 14 years of age or older and is charged with a serious violent offence (as defined in C-10), 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.

Adult Sentencing: Test (s. 72) YCJA: would a youth sentence have sufficient length to hold the youth accountable? C-10: (a) has the Crown rebutted the presumption of diminished moral blameworthiness or culpability? and (b) would a youth sentence have sufficient length to hold the youth accountable?

Placement after Adult Sentencing: (s. (76(2)) YCJA: A young person who is under 18 and receives an adult sentence shall be placed in a youth facility unless it would not be in the best interests of the young person or would jeopardize the safety of others. C-10: No young person who is under 18 is to serve any portion of an adult sentence in a provincial correctional facility for adults or a penitentiary. As a result, under the YCJA, no young person under 18 will serve any portion of either a youth or an adult sentence in an adult facility.

F. Lifting Publication Ban

Lifting Publication Ban (s. 75) YCJA: If a youth receives a youth sentence for a presumptive offence, youth must convince the court to maintain the publication ban. In R. v. D.B., the SCC struck down the reverse onus. C-10: If a youth receives a youth sentence for a violent offence, the court may order a lifting of the publication ban if the court determines, taking into account the purpose and principles in sections 3 and 38, that: the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.

Lifting Publication Ban (s.75) C-10 repeals the current YCJA provision (s.75). Application for adult sentence not required. Publicly identifying the youth must be “necessary to protect the public”. Court must take account of s.3 and s.38 – e.g. impact of publication on rehabilitation of the youth; proportionality; diminished moral blameworthiness of youth.

G. Police Record of Extrajudicial Measures (s. 115) YCJA: No statutory requirement that the police keep a record of their use of extrajudicial measures; however, police may keep such records. C-10: The police force shall keep a record of any extrajudicial measures that they use to deal with young persons. The restrictions on access to records of extrajudicial measures other than extrajudicial sanctions continue to apply (s.119(4)).