Safe Streets and Communities Act (S.C. 2012, c. 1)
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Assented to 2012-03-13
PART 4YOUTH CRIMINAL JUSTICE
2002, c. 1Youth Criminal Justice Act
Amendments to the Act
168. (1) Paragraph 3(1)(a) of the Act is replaced by the following:
(a) the youth criminal justice system is intended to protect the public by
(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,
(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and
(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;
(2) The portion of paragraph 3(1)(b) of the Act before subparagraph (i) is replaced by the following:
(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:
169. Subsection 29(2) of the Act is replaced by the following:
Marginal note:Justification for detention in custody
(2) A youth justice court judge or a justice may order that a young person be detained in custody only if
(a) the young person has been charged with
(i) a serious offence, or
(ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt;
(b) the judge or justice is satisfied, on a balance of probabilities,
(i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,
(ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or
(iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in section 3 and to all the circumstances, including
(A) the apparent strength of the prosecution’s case,
(B) the gravity of the offence,
(C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and
(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b),
(i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so,
(ii) offer adequate protection to the public from the risk that the young person might otherwise present, or
(iii) maintain confidence in the administration of justice.
Marginal note:Onus
(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General.
170. Subsection 32(1) of the Act is amended by adding “and” at the end of paragraph (b), by striking out “and” at the end of paragraph (c) and by repealing paragraph (d).
171. Subsection 37(4) of the Act is replaced by the following:
Marginal note:Appeals heard together
(4) An order under subsection 72(1) or (1.1) (adult or youth sentence), 75(2) (lifting of ban on publication) 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.
172. Subsection 38(2) of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):
(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.
173. Paragraph 39(1)(c) of the Act is replaced by the following:
(c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or
174. (1) Paragraph 42(2)(o) of the Act is replaced by the following:
(o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;
(2) Paragraph 42(5)(a) of the Act is replaced by the following:
(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and
(3) Subparagraphs 42(7)(a)(i) and (ii) of the Act are replaced by the following:
(i) the young person has been found guilty of a serious violent offence, or
(ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;
(4) Subsections 42(9) and (10) of the Act are repealed.
175. Sections 61 to 63 of the Act are repealed.
176. (1) Subsections 64(1) and (2) of the Act are replaced by the following:
Marginal note:Application by Attorney General
64. (1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.
Marginal note:Obligation
(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.
Marginal note:Order fixing age
(1.2) The lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of subsection (1.1).
Marginal note:Notice of intention to seek adult sentence
(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence.
(2) Subsections 64(4) and (5) of the Act are repealed.
177. Sections 65 and 66 of the Act are repealed.
178. (1) The portion of subsection 67(1) of the Act before paragraph (b) is replaced by the following:
Marginal note:Election — adult sentence
67. (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if
(2) The portion of subsection 67(3) of the Act before paragraph (b) is replaced by the following:
Marginal note:Election — Nunavut
(3) In respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if
179. Section 68 of the Act is repealed.
180. (1) Subsection 69(1) of the Act is repealed.
(2) Subsection 69(2) of the Act is replaced by the following:
Marginal note:Included offences
(2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person is found guilty of an included offence for which an adult is liable to imprisonment for a term of more than two years, committed after he or she has attained the age of 14 years, the Attorney General may make an application under subsection 64(1) (application for adult sentence).
181. Section 70 of the Act is repealed.
182. Section 71 of the Act is replaced by the following:
Marginal note:Hearing — adult sentences
71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing.
183. (1) Subsections 72(1) to (3) of the Act are replaced by the following:
Marginal note:Order of adult sentence
72. (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that
(a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
(b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
Marginal note:Order of youth sentence
(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.
Marginal note:Onus
(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.
Marginal note:Pre-sentence report
(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report.
(2) Subsection 72(5) of the Act is replaced by the following:
Marginal note:Appeal
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.
184. Section 73 of the Act is replaced by the following:
Marginal note:Court must impose adult sentence
73. (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.
Marginal note:Court must impose youth sentence
(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person.
185. Section 75 of the Act is replaced by the following:
Marginal note:Decision regarding lifting of publication ban
75. (1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1).
Marginal note:Order
(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and principles set out 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.
Marginal note:Onus
(3) The onus of satisfying the youth justice court as to the appropriateness of lifting the ban is on the Attorney General.
Marginal note:Appeals
(4) For the purposes of an appeal in accordance with section 37, an order under subsection (2) is part of the sentence.
186. Subsection 76(2) of the Act is replaced by the following:
Marginal note:Young person under age of 18
(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary.
187. Section 81 of the Act is replaced by the following:
Marginal note:Procedure for application or notice
81. An application or a notice to the court under section 64 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.
188. (1) Paragraph 82(1)(b) of the Act is replaced by the following:
(b) a youth justice court may consider the finding of guilt in considering an application under subsection 64(1) (application for adult sentence);
(2) Paragraph 82(4)(a) of the Act is repealed.
(3) Paragraph 82(4)(b) of the French version of the Act is replaced by the following:
b) de déterminer la peine applicable aux adultes à imposer.
189. Paragraph 110(2)(b) of the Act is replaced by the following:
(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and
190. Section 115 of the Act is amended by adding the following after subsection (1):
Marginal note:Extrajudicial measures
(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons.
191. Paragraph 119(1)(o) of the French version of the Act is replaced by the following:
o) toute personne, pour vérifier l’existence d’un casier judiciaire dans le cas où la vérification est exigée par le gouvernement du Canada ou d’une province ou par une municipalité en matière de recrutement de personnel ou de bénévoles ou de fourniture de services;
192. Paragraphs 120(3)(a) and (b) of the Act are replaced by the following:
(a) if the offence is an indictable offence, other than an offence referred to in paragraph (b), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and
(b) if the offence is a serious violent offence for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely.
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