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

Application for Release from or Detention in Custody

Marginal note:Application for release from or detention in custody

• 33 (1) If an order is made under section 515 (judicial interim release) of the Criminal Code in respect of a young person by a justice who is not a youth justice court judge, an application may, at any time after the order is made, be made to a youth justice court for the release from or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an original application.

• Marginal note:Notice to prosecutor

  (2) An application under subsection (1) for release from custody shall not be heard unless the young person has given the prosecutor at least two clear days notice in writing of the application.

• Marginal note:Notice to young person

  (3) An application under subsection (1) for detention in custody shall not be heard unless the prosecutor has given the young person at least two clear days notice in writing of the application.

• Marginal note:Waiver of notice

  (4) The requirement for notice under subsection (2) or (3) may be waived by the prosecutor or by the young person or his or her counsel, as the case may be.

• Marginal note:Application for review under section 520 or 521 of Criminal Code

  (5) An application under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a youth justice court judge who is a judge of a superior court shall be made to a judge of the court of appeal.

• Marginal note:Nunavut

  (6) Despite subsection (5), an application under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a youth justice court judge who is a judge of the Nunavut Court of Justice shall be made to a judge of that court.

• Marginal note:No review

  (7) No application may be made under section 520 or 521 of the Criminal Code for a review of an order made in respect of a young person by a justice who is not a youth justice court judge.

• Marginal note:Interim release by youth justice court judge only

  (8) If a young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code, a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section.

• Marginal note:Review by court of appeal

  (9) A decision made by a youth justice court judge under subsection (8) may be reviewed in accordance with section 680 of the Criminal Code and that section applies, with any modifications that the circumstances require, to any decision so made.

Medical and Psychological Reports

Marginal note:Medical or psychological assessment

• 34 (1) A youth justice court may, at any stage of proceedings against a young person, by order require that the young person be assessed by a qualified person who is required to report the results in writing to the court,

  • (a) with the consent of the young person and the prosecutor; or

  • (b) on its own motion or on application of the young person or the prosecutor, if the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(a) to (g) and

    • (i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability,

    • (ii) the young person’s history indicates a pattern of repeated findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or

    • (iii) the young person is alleged to have committed a serious violent offence.

• Marginal note:Purpose of assessment

  (2) A youth justice court may make an order under subsection (1) in respect of a young person for the purpose of

  • (a) considering an application under section 33 (release from or detention in custody);

  • (b) making its decision on an application heard under section 71 (hearing — adult sentences);

  • (c) making or reviewing a youth sentence;

  • (d) considering an application under subsection 104(1) (continuation of custody);

  • (e) setting conditions under subsection 105(1) (conditional supervision);

  • (f) making an order under subsection 109(2) (conditional supervision); or

  • (g) authorizing disclosure under subsection 127(1) (information about a young person).

• Marginal note:Custody for assessment

  (3) Subject to subsections (4) and (6), for the purpose of an assessment under this section, a youth justice court may remand a young person to any custody that it directs for a period not exceeding thirty days.

• Marginal note:Presumption against custodial remand

  (4) A young person shall not be remanded in custody in accordance with an order made under subsection (1) unless

  • (a) the youth justice court is satisfied that

    • (i) on the evidence custody is necessary to conduct an assessment of the young person, or

    • (ii) on the evidence of a qualified person detention of the young person in custody is desirable to conduct the assessment of the young person, and the young person consents to custody; or

  • (b) the young person is required to be detained in custody in respect of any other matter or by virtue of any provision of the Criminal Code.

• Marginal note:Report of qualified person in writing

  (5) For the purposes of paragraph (4)(a), if the prosecutor and the young person agree, evidence of a qualified person may be received in the form of a report in writing.

• Marginal note:Application to vary assessment order if circumstances change

  (6) A youth justice court may, at any time while an order made under subsection (1) is in force, on cause being shown, vary the terms and conditions specified in the order in any manner that the court considers appropriate in the circumstances.

• Marginal note:Disclosure of report

  (7) When a youth justice court receives a report made in respect of a young person under subsection (1),

  • (a) the court shall, subject to subsection (9), cause a copy of the report to be given to

    • (i) the young person,

    • (ii) any parent of the young person who is in attendance at the proceedings against the young person,

    • (iii) any counsel representing the young person, and

    • (iv) the prosecutor; and

  • (b) the court may cause a copy of the report to be given to

    • (i) a parent of the young person who is not in attendance at the proceedings if the parent is, in the opinion of the court, taking an active interest in the proceedings, or

    • (ii) despite subsection 119(6) (restrictions respecting access to certain records), the provincial director, or the director of the provincial correctional facility for adults or the penitentiary at which the young person is serving a youth sentence, if, in the opinion of the court, withholding the report would jeopardize the safety of any person.

• Marginal note:Cross-examination

  (8) When a report is made in respect of a young person under subsection (1), the young person, his or her counsel or the adult assisting the young person under subsection 25(7) and the prosecutor shall, subject to subsection (9), on application to the youth justice court, be given an opportunity to cross-examine the person who made the report.

• Marginal note:Non-disclosure in certain cases

  (9) A youth justice court shall withhold all or part of a report made in respect of a young person under subsection (1) from a private prosecutor, if disclosure of the report or part, in the opinion of the court, is not necessary for the prosecution of the case and might be prejudicial to the young person.

• Marginal note:Non-disclosure in certain cases

  (10) A youth justice court shall withhold all or part of a report made in respect of a young person under subsection (1) from the young person, the young person’s parents or a private prosecutor if the court is satisfied, on the basis of the report or evidence given in the absence of the young person, parents or private prosecutor by the person who made the report, that disclosure of the report or part would seriously impair the treatment or recovery of the young person, or would be likely to endanger the life or safety of, or result in serious psychological harm to, another person.

• Marginal note:Exception — interests of justice

  (11) Despite subsection (10), the youth justice court may release all or part of the report to the young person, the young person’s parents or the private prosecutor if the court is of the opinion that the interests of justice make disclosure essential.

• Marginal note:Report to be part of record

  (12) A report made under subsection (1) forms part of the record of the case in respect of which it was requested.

• Marginal note:Disclosure by qualified person

  (13) Despite any other provision of this Act, a qualified person who is of the opinion that a young person held in detention or committed to custody is likely to endanger his or her own life or safety or to endanger the life of, or cause bodily harm to, another person may immediately so advise any person who has the care and custody of the young person whether or not the same information is contained in a report made under subsection (1).

• Definition of qualified person

  (14) In this section, qualified person means a person duly qualified by provincial law to practice medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, if no such law exists, a person who is, in the opinion of the youth justice court, so qualified, and includes a person or a member of a class of persons designated by the lieutenant governor in council of a province or his or her delegate.

Referral to Child Welfare Agency

Marginal note:Referral to child welfare agency

35 In addition to any order that it is authorized to make, a youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

Adjudication

Marginal note:When young person pleads guilty

• 36 (1) If a young person pleads guilty to an offence charged against the young person and the youth justice court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence.

• Marginal note:When young person pleads not guilty

  (2) If a young person charged with an offence pleads not guilty to the offence or pleads guilty but the youth justice court is not satisfied that the facts support the charge, the court shall proceed with the trial and shall, after considering the matter, find the young person guilty or not guilty or make an order dismissing the charge, as the case may be.

Appeals

Marginal note:Appeals

• 37 (1) An appeal in respect of an indictable offence or an offence that the Attorney General elects to proceed with as an indictable offence lies under this Act in accordance with Part XXI (appeals — indictable offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Appeals for contempt of court

  (2) A finding of guilt under section 15 for contempt of court or a sentence imposed in respect of the finding may be appealed as if the finding were a conviction or the sentence were a sentence in a prosecution by indictment.

• Marginal note:Appeal

  (3) Section 10 of the Criminal Code applies if a person is convicted of contempt of court under subsection 27(4) (failure of parent to attend court).

• Marginal note:Appeals heard together

  (4) An order under subsection 72(1) or (1.1) (adult or youth sentence) or 76(1) (placement when subject to adult sentence) may be appealed as part of the sentence and, unless the court to which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding.

• Marginal note:Appeals for summary conviction offences

  (5) An appeal in respect of an offence punishable on summary conviction or an offence that the Attorney General elects to proceed with as an offence punishable on summary conviction lies under this Act in accordance with Part XXVII (summary conviction offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Appeals where offences are tried jointly

  (6) An appeal in respect of one or more indictable offences and one or more summary conviction offences that are tried jointly or in respect of which youth sentences are jointly imposed lies under this Act in accordance with Part XXI (appeals — indictable offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Deemed election

  (7) For the purpose of appeals under this Act, if no election is made in respect of an offence that may be prosecuted by indictment or proceeded with by way of summary conviction, the Attorney General is deemed to have elected to proceed with the offence as an offence punishable on summary conviction.

• Marginal note:If the youth justice court is a superior court

  (8) In any province where the youth justice court is a superior court, an appeal under subsection (5) shall be made to the court of appeal of the province.

• Marginal note:Nunavut

  (9) Despite subsection (8), if the Nunavut Court of Justice is acting as a youth justice court, an appeal under subsection (5) shall be made to a judge of the Nunavut Court of Appeal, and an appeal of that judge’s decision shall be made to the Nunavut Court of Appeal in accordance with section 839 of the Criminal Code.

• Marginal note:Appeal to the Supreme Court of Canada

  (10) No appeal lies under subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information or indictment to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada.

• Marginal note:No appeal from youth sentence on review

  (11) No appeal lies from a youth sentence under section 59 — other than subsection 59(10) — or under any of sections 94 to 96.

PART 4Sentencing

Purpose and Principles

Marginal note:Purpose

• 38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

• Marginal note:Sentencing principles

  (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

  • (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

  • (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

  • (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

  • (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

  • (e) subject to paragraph (c), the sentence must

    • (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

    • (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

    • (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

  • (e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

    • (i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

    • (ii) the young person will reasonably be able to comply with the condition, and

    • (iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

  • (f) subject to paragraph (c), the sentence may have the following objectives:

    • (i) to denounce unlawful conduct, and

    • (ii) to deter the young person from committing offences.

• Marginal note:Factors to be considered

  (3) In determining a youth sentence, the youth justice court shall take into account

  • (a) the degree of participation by the young person in the commission of the offence;

  • (b) the harm done to victims and whether it was intentional or reasonably foreseeable;

  • (c) any reparation made by the young person to the victim or the community;

  • (d) the time spent in detention by the young person as a result of the offence;

  • (e) the previous findings of guilt of the young person; and

  • (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.