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Chapter 10 The Youth Justice System

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Introduction

the Young Offenders Act was replaced with the Youth Criminal Justice Act

passed February 2002

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Objectives of the Youth Criminal Justice Act

1 promoting accountability, responsibility, and consequences for all youth crimes

2 supporting long-term solutions to youth crime and reinforcing social values such as respect, responsibility, and accountability

3 respecting national and international human rights protection for children, while protecting public safety

4 streamlining and making youth justice more flexible so that cases take less time and so that provinces can develop their own unique measures

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Declaration of Principle

for those ages 12-17 who are charged with Criminal Code Offences and other Federal laws (Controlled Drugs and Substances Act)

Youth Justice Act outlines how youths are to be dealt with if charged

violations of provincial laws (drinking under age, traffic violations) are dealt with under provincial and municipal legislation

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18 and over are considered adults and face adult trial procedures and penaltiesunder the Juvenile Delinquents Act the minimum age for criminally charging a youth was seven years of age this was raised to 12 under the Young Offenders Act to reflect the view that younger children could not form criminal intenttoday children younger than 12 are dealt with under provincial laws such as child-welfare legislation

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Changes brought in by the Youth Criminal Justice Act

1. expanded the role of rehabilitation programs for nonviolent, violent, and repeat offenders

2. introduced stiffer penalties and sentences for violent youth crimes because society felt the YOA failed to take youth crime serious enough

now must impose a period of supervision in the community for youths who serve time in custody (usually equal to 1/2 the time spent in custody)

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because nonviolent offenders have more access to rehabilitation programs, many cases will be diverted from courtdesigned to reintegrate youth into society before they are drawn into criminal courts and penaltiesUnder the YOA only 16 & 17 year-olds accused of murder, manslaughter and aggravated sexual assault could face adult sentences

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now any youth over the age 14 accused of a violent act can be treated and sentenced as an adultcan give out adult sentences to youths convicted of offences that are punishable by more than two years in jailthe lower age limit is to act as a deterrent and help to prevent violent youth crimes from occurring

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Rights of Youthspolice do not have to arrest youths who are suspected of breaking the law

police may talk to the young person and then take them home or call the parent or guardians

police will consider such factors as the youths attitude, previous record if any, and seriousness of the offence

police record these incidents so that charges may be laid if the youth gets in trouble again

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Extrajudicial Sanctions--Alternative Measures Programs

non violent first time offenders can avoid trial in a youth court by taking part in programs of extrajudicial sanction, (called the alternative measures programs under the YOA) is similar to the adult diversions program

in the period 1998 to 1999, 93% of the youths involved in alternative programs were first time offenders

70% committed property offences, the most common being theft under $5000, then mischief, other property offences and common assault

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designed to help youths learn from their mistakes before they get criminal records

intentions is to rehabilitate youths who have come into conflict with the law

apologize to the victim and return stolen goods

do community service, counseling, drug and alcohol treatment, and special school programs

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community service work (a set number of hours in the community and apologize to the victim) is the most common

1 out of 3 youths go through these programs rather than youth justice courts

to enter the program

a) admit some involvement in the offence (not a confession of guilt and it can not be used as evidence later

b) right to consult a lawyer before they take part in a program

completing these programs may result in all charges against them stayed or dropped

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no criminal record is recorded

youths can refuse to participate in these programs if they have a valid defence (they should choose to be tried in a youth justice court)

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Arrest and Detention

for serious offences the police must arrest youthsthe legal rights listed in the Charter apply to all youthsreason for the arrest-right to obtain free advice and a legal-aid lawyer-right to apply to be released from custody-right to a fair trial

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during an arrest the police must describe a youth's rights in clear and understandable language

advise that they do not have to make a statement

right to consult a lawyer

right to have a parent or another adult present during any questioning

a youth who decides to ignore these rights must sign a statement to that effect

failure to respect these rights of the youth may cause the confession by youths to be inadmissible evidence

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Detention and Bailsame rights as adults

terms of release--often impose curfews, and forbid contact with victims and certain friends

are released into the custody of parents or other responsible adults

generally not released on their own recognizance

those that may be at risk of reoffending or not appearing for trial may be sent to foster homes or placed under house arrest before trial or sentencing

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house arrest—sentenced to remain at home during set hoursin some cases the youth must wear an electronic device so their movements can be monitoredYouths can only be fingerprinted and photographed when they have been charged with indictable offencesthese must be destroyed if the youth is acquitted, the charge is dismissed, or proceedings are discontinued

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victims, schools and police have access to youth court records

youth justice court records are not automatically destroyed when a convicted youth reaches the age of 18

after a certain period of time, they are not made available

records of youths who receive adult sentences are treated in the same way as adult records

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Notice to Parentsparents must be notified as soon as possible after their child is detained or arrested

a judge may order parents to attend hearings and those who do not appear may be found in contempt of court and issued a warrant for their arrest

any parent or adult who promises the court to supervise a youth and fails to carry out these duties can face criminal charges

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Trial Procedurestrial held in either a family court or a youth justice court unless the case is transferred to adult court

trials for youths and adults follow the same rules of evidence and are equally formal

Ontario's youth court system has two levels: family court for those age 12 to 15 and provincial court for those 16 to 17

youths do not have the right to decide in which court system they will be tried

no preliminary hearing is held, and a judge alone conducts all trials (no jury trials)

defence lawyers usually represent both youths and adults and both have access to legal aid

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Privacy of Hearingsthe Act lets the public and media attend trials or hearings involving youthsprocedures may be reported usually youths names of the accused, witnesses, or victims are not disclosed to shield the youth from publicity, regardless of the outcome, and cause them stressnames of 14 to 17 year-olds who are convicted of serious, violent crimes, murder etc, can be reported in the media to protect the publicthose that are dangerous and at large can have their photographs published with their namesthe Crown can state at the beginning of the trial that they will not seek an adult sentence means that if the person is found guilty they will receive a youth sentence--in this case their name must not be reported or published

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Transfer to Adult Courtyouth must have been 14 or older at the time of the offence and commit a serious violent crime or be a repeat offender of such a crime

tried as adults and can receive adult sentences

transfers to adult court are not automatic

decision to transfer the trial must be made before the accused's plea is heard

a transfer hearing is held to determine which court (adult or youth justice)

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hearing does not determine the accused's innocence or guiltlooks at the benefits and harm of custody under the Youth Criminal Justice Act as compared to imprisonment under the Criminal Codeparents of the offender can present views as can the victim’susually the Crown applies to transfer a case to adult court when it believes the offence requires an adult punishment

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an accused youth may also request a transfer to adult court (rarely happens) -may believe a jury trial would be better

if several co-accused are charged with the offence and only one is a youth, the defence lawyer for the youth may want to transfer it to adult court so the same judge hears all the cases

judges are reluctant to send youths to adult court because they may face longer sentences that will be served in adult jails and penitentiaries

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Sentencingcalled a disposition under the YOAYouth Criminal Justice Act does not use the term disposition but uses the term sentencingsentencing allows the judge to consider the needs and circumstances of each youthlook at the needs and concerns of the victim and public safetythe Crown and Defence may recommend specific sentences to the judge but the judge makes the final decisionjudge must consider the needs of the community and must also help the youth to take responsibility for breaking the law

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assumed that youths are more easily rehabilitated than adults

judge must choose a sentence to help the youth become rehabilitated and reintegrated into society

before sentencing the judge may hold a sentencing hearing just like in adult court

will receive a pre-sentence report prepared by a probation officer

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1. interview with the youth, the parents and the victim

2. any intention by the offender to change his or her conduct

3. records of school attendance and performance

4. a history of any previous criminal offences

5. the offender's attitude toward the offence

6. any background that will provide insight into the offender's character

7. where there is concern for a youth's state of mind, a medical and psychiatric profile may be included

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Absolute Dischargemay be given for first time offences

means the youth has been found guilty but that no formal conviction will be entered and the court will take no further action (no penalty)

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Finesunder provincial and municipal legislation, youths may be fined up to $1000 for summary offencesmust consider the youth's ability to payyouth, not the parents to payyouth can ask to extend the payment deadlineif not paid the youth may be placed in custodyfine may be combined with probation or community service work

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Compensation

pay monetary compensation to the victim to make up for any damage to property or lost income

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Personal and Community Service

for those who cannot afford finesmay order the youths to work for their victimsvictim must agree--personal service orders are uncommonwhen youth has harmed the community the judge may impose a community service work order

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Police and Community-Based Programs

working with children and youthse.g., Ottawa Police Youth Centrethe Sparwood Youth Assistance Program in British Columbiapolice are the first to deal with at-risk youths in schools and neighbourhoods and have the necessary experience and knowledge to deal with them

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Probationlife style rules ordered for offenders instead of jail time (limits a youth's freedom)

up to two years

no limit to the number of conditions a probation order can contain

one basic condition--stay out of trouble

youths are given copies of their probation orders

breaking the probation terms is a criminal offence and it may lead back to court and a longer sentence

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Custodymost serious sentence

used when a youth is seen as a danger to society and when other types of sentence have failed or when violent crimes have been committed

courts find that youths need to be supervised

custody can be either open or secure (closed)

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Open Custody

need more supervision and structure in their livesaccess to the community is available but it is limited and superviseddesigned to rehabilitate youths and include1. foster or group homes, 2. child-care facilities, and3. residential wilderness programs

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foster home--youth lives with another family that provides supervision (foster parents receive payments from provincial gov't)

only a few restrictions, perhaps a curfew

group home--designed to house several offenders and operated by a trained staff

youth learn to behave responsibly

link up to community resources--anger management, life-skill training etc

youths may be placed in the care of the Children's Aid Society or the appropriate government department

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Secured Custodythose who committed a serious violent offence or have a history of offences and may be judged a threat to society and sentenced to secured custody

last resort

freedoms are totally restricted with little or no community contact

barred windows and locked doors

educational upgrading and skills training are important goals in custodial facilities

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may be granted temporary absence or day release for education

often sent to open facilities near the end of their sentence

if they turn 18 while in custody, correctional officials may apply to a youth justice court judge to transfer the offender to an adult facility for the rest of the sentence

unlike adults in prison, youths in custody are not eligible for parole or for time off for good behaviour because the sentence has already given youths special consideration and protection

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Appeals and Reviewscourt review of all sentences

by request of youths, their family, or by provincial authoritiesmay be made up to 6 months after the sentence has been imposedyouth in custody for more than 1 year is automatically reviewed at the end of one yearchanges to sentence reflect any progress the youth may have made