Youth Criminal Justice Act (S.C. 2002, c. 1)

Marginal note:Young person to be held apart from adults

84 Subject to subsection 30(3) (pre-trial detention), paragraphs 76(1)(b) and (c) (placement in adult facilities with adult sentence) and sections 89 to 93 (placement in adult facilities with youth sentence), a young person who is committed to custody shall be held separate and apart from any adult who is detained or held in custody.

Marginal note:Levels of custody

• 85 (1) In the youth custody and supervision system in each province there must be at least two levels of custody for young persons distinguished by the degree of restraint of the young persons in them.

• Marginal note:Designation of youth custody facilities

  (2) Every youth custody facility in a province that contains one or more levels of custody shall be designated by

  • (a) in the case of a youth custody facility with only one level of custody, being the level of custody with the least degree of restraint of the young persons in it, the lieutenant governor in council or his or her delegate; and

  • (b) in any other case, the lieutenant governor in council.

• Marginal note:Provincial director to specify custody level — committal to custody

  (3) The provincial director shall, when a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r) or an order is made under subsection 98(3), paragraph 103(2)(b), subsection 104(1) or paragraph 109(2)(b), determine the level of custody appropriate for the young person, after having taken into account the factors set out in subsection (5).

• Marginal note:Provincial director to specify custody level — transfer

  (4) The provincial director may determine a different level of custody for the young person when the provincial director is satisfied that the needs of the young person and the interests of society would be better served by doing so, after having taken into account the factors set out in subsection (5).

• Marginal note:Factors

  (5) The factors referred to in subsections (3) and (4) are

  • (a) that the appropriate level of custody for the young person is the one that is the least restrictive to the young person, having regard to

    • (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,

    • (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

    • (iii) the safety of other young persons in custody, and

    • (iv) the interests of society;

  • (b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person; and

  • (c) the likelihood of escape.

• Marginal note:Placement and transfer at appropriate level

  (6) After the provincial director has determined the appropriate level of custody for the young person under subsection (3) or (4), the young person shall be placed in the youth custody facility that contains that level of custody specified by the provincial director.

• Marginal note:Notice

  (7) The provincial director shall cause a notice in writing of a determination under subsection (3) or (4) to be given to the young person and a parent of the young person and set out in that notice the reasons for it.

Marginal note:Procedural safeguards

• 86 (1) The lieutenant governor in council of a province shall ensure that procedures are in place to ensure that the due process rights of the young person are protected with respect to a determination made under subsection 85(3) or (4), including that the young person be

  • (a) provided with any relevant information to which the provincial director has access in making the determination, subject to subsection (2);

  • (b) given the opportunity to be heard; and

  • (c) informed of any right to a review under section 87.

• Marginal note:Withholding of information

  (2) Where the provincial director has reasonable grounds to believe that providing the information referred to in paragraph (1)(a) would jeopardize the safety of any person or the security of a facility, he or she may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.

Marginal note:Review

• 87 (1) A young person may apply for a review under this section of a determination

  • (a) under subsection 85(3) that would place the young person in a facility at a level of custody that has more than a minimal degree of restraint; or

  • (b) under subsection 85(4) that would transfer a young person to a facility at a level of custody with a higher degree of restraint or increase the degree of restraint of the young person in the facility.

• Marginal note:Procedural safeguards

  (2) The lieutenant governor in council of a province shall ensure that procedures are in place for the review under subsection (1), including that

  • (a) the review board that conducts the review be independent;

  • (b) the young person be provided with any relevant information to which the review board has access, subject to subsection (3); and

  • (c) the young person be given the opportunity to be heard.

• Marginal note:Withholding of information

  (3) Where the review board has reasonable grounds to believe that providing the information referred to in paragraph (2)(b) would jeopardize the safety of any person or the security of a facility, it may authorize the withholding from the young person of as much information as is strictly necessary in order to protect such safety or security.

• Marginal note:Factors

  (4) The review board shall take into account the factors referred to in subsection 85(5) in reviewing a determination.

• Marginal note:Decision is final

  (5) A decision of the review board under this section in respect of a particular determination is final.

Marginal note:Functions to be exercised by youth justice court

88 The lieutenant governor in council of a province may order that the power to make determinations of the level of custody for young persons and to review those determinations be exercised in accordance with the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985. The following provisions of that Act apply, with any modifications that the circumstances require, to the exercise of those powers:

• (a) the definitions review board and progress report in subsection 2(1);

• (b) section 11;

• (c) sections 24.1 to 24.3; and

• (d) sections 28 to 31.

Marginal note:Exception if young person is twenty years old or older

• 89 (1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence.

• Marginal note:If serving youth sentence in a provincial correctional facility

  (2) If a young person is serving a youth sentence in a provincial correctional facility for adults pursuant to subsection (1), the youth justice court may, on application of the provincial director at any time after the young person begins to serve a portion of the youth sentence in a provincial correctional facility for adults, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more.

• Marginal note:Provisions to apply

  (3) If a young person is serving a youth sentence in a provincial correctional facility for adults or a penitentiary under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners or offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.

Marginal note:Youth worker

• 90 (1) When a youth sentence is imposed committing a young person to custody, the provincial director of the province in which the young person received the youth sentence and was placed in custody shall, without delay, designate a youth worker to work with the young person to plan for his or her reintegration into the community, including the preparation and implementation of a reintegration plan that sets out the most effective programs for the young person in order to maximize his or her chances for reintegration into the community.

• Marginal note:Role of youth worker when young person in the community

  (2) When a portion of a young person’s youth sentence is served in the community in accordance with section 97 or 105, the youth worker shall supervise the young person, continue to provide support to the young person and assist the young person to respect the conditions to which he or she is subject, and help the young person in the implementation of the reintegration plan.

Marginal note:Reintegration leave

• 91 (1) The provincial director of a province may, subject to any terms or conditions that he or she considers desirable, authorize, for a young person committed to a youth custody facility in the province further to an order under paragraph 76(1)(a) (placement when subject to adult sentence) or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r),

  • (a) a reintegration leave from the youth custody facility for a period not exceeding thirty days if, in the opinion of the provincial director, it is necessary or desirable that the young person be absent, with or without escort, for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or reintegrating the young person into the community; or

  • (b) that the young person be released from the youth custody facility on the days and during the hours that the provincial director specifies in order that the young person may

    • (i) attend school or any other educational or training institution,

    • (ii) obtain or continue employment or perform domestic or other duties required by the young person’s family,

    • (iii) participate in a program specified by the provincial director that, in the provincial director’s opinion, will enable the young person to better carry out employment or improve his or her education or training, or

    • (iv) attend an out-patient treatment program or other program that provides services that are suitable to addressing the young person’s needs.

• Marginal note:Renewal of reintegration leave

  (2) A reintegration leave authorized under paragraph (1)(a) may be renewed by the provincial director for one or more thirty-day periods on reassessment of the case.

• Marginal note:Revocation of authorization

  (3) The provincial director of a province may, at any time, revoke an authorization made under subsection (1).

• Marginal note:Arrest and return to custody

  (4) If the provincial director revokes an authorization under subsection (3) or if a young person fails to comply with any term or condition of a reintegration leave or a release from custody under this section, the young person may be arrested without warrant and returned to custody.

Marginal note:Transfer to adult facility

• 92 (1) When a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r), the youth justice court may, on application of the provincial director made at any time after the young person attains the age of eighteen years, after giving the young person, the provincial director and representatives of the provincial correctional system an opportunity to be heard, authorize the provincial director to direct that the young person, subject to subsection (3), serve the remainder of the youth sentence in a provincial correctional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest.

• Marginal note:If serving youth sentence in a provincial correctional facility

  (2) The youth justice court may authorize the provincial director to direct that a young person, subject to subsection (3), serve the remainder of a youth sentence in a penitentiary

  • (a) if the youth justice court considers it to be in the best interests of the young person or in the public interest;

  • (b) if the provincial director applies for the authorization at any time after the young person begins to serve a portion of a youth sentence in a provincial correctional facility for adults further to a direction made under subsection (1);

  • (c) if, at the time of the application, that remainder is two years or more; and

  • (d) so long as the youth justice court gives the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard.

• Marginal note:Provisions to apply

  (3) If the provincial director makes a direction under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners and offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.

• Marginal note:Placement when adult and youth sentences

  (4) If a person is subject to more than one sentence, at least one of which is a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) and at least one of which is a sentence referred to in either paragraph (b) or (c), he or she shall serve, in a provincial correctional facility for adults or a penitentiary in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code, the following:

  • (a) the remainder of any youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r);

  • (b) an adult sentence to which an order under paragraph 76(1)(b) or (c) (placement in adult facility) applies; and

  • (c) any sentence of imprisonment imposed otherwise than under this Act.

• Marginal note:Youth sentence and adult sentence

  (5) If a young person is committed to custody under a youth sentence under paragraph 42(2)(n), (o), (q) or (r) and is also already subject to an adult sentence to which an order under paragraph 76(1)(a) (placement when subject to adult sentence) applies, the young person may, in the discretion of the provincial director, serve the sentences, or any portion of the sentences, in a youth custody facility, in a provincial correctional facility for adults or, if the unexpired portion of the sentence is two years or more, in a penitentiary.

Marginal note:When young person reaches twenty years of age

• 93 (1) When a young person who is committed to custody under paragraph 42(2)(n), (o), (q) or (r) is in a youth custody facility when the young person attains the age of twenty years, the young person shall be transferred to a provincial correctional facility for adults to serve the remainder of the youth sentence, unless the provincial director orders that the young person continue to serve the youth sentence in a youth custody facility.

• Marginal note:If serving youth sentence in a provincial correctional facility

  (2) If a young person is serving a portion of a youth sentence in a provincial correctional facility for adults pursuant to a transfer under subsection (1), the youth justice court may, on application of the provincial director after the transfer, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more.

• Marginal note:Provisions to apply

  (3) If the provincial director makes the direction, the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners and offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.