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SENTENCING

The YCJA establishes a process to provide the youth court judge with information to allow an appropriate sentence to be imposed as well affording the youth, parents, the victim, and other interested parties an opportunity to engage in the sentencing process. It is generally mandatory for a pre-sentence report to be prepared by a youth probation officer before a custodial sentence can be imposed. In some more serious cases, a medical or psychological assessment may also be prepared to provide the court with a fuller understanding of the needs of the youth.

Judges have a range of sentencing options under the YCJA, from a “verbal reprimand” to a 3-year sentence of custody. For murder, there is a longer maximum youth sentence, up to 10 years in custody for first-degree murder. Adult sanctions (i.e., up to life imprisonment) are also possible for the most serious cases.

The YCJA establishes the purpose of sentencing in youth court and sets out specific principles to guide courts in sentencing youth. Section 38(1) states that “[t]he purpose of [youth court] sentencing ... is to hold a young person accountable for an offense through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration.” The Supreme Court of Canada in R. v. B.W.P. (2006) upheld a trial decision that emphasized the importance of rehabilitation in sentencing a youth found guilty of manslaughter. The court discussed the role of deterrence in sentencing, observing that for adults “general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.” The Supreme Court also recognized that while deterrence of that specific young person should not be an objective of sentencing in youth court, the fact that a youth is to be held accountable in youth court undoubtedly has “the effect of deterring the young person and others from committing crimes.” In 2012, the YCJA was amended so that denunciation and specific deterrence were added as principles of youth sentencing. General deterrence, however, is still not a factor in youth sentencing.

The Act significantly structures judicial discretion in youth sentencing, limiting the situations in which custody can be used and encouraging use of community-based approaches to youth crime. Sections 38(2) (e) requires that, subject to the requirement that sentences are to be proportionate to the offense, “the sentence must be the least restrictive sentence that is capable of achieving the purpose [of sentencing].” Under section 39(1), a custodial sentence can only be imposed for cases involving violence, repeat offending, breaches of noncustodial sentences, or “exceptional circumstances.” Thus, custody may not be an option for the least serious cases. For example, youth without a prior record appearing on a first or even second minor property offense cannot receive a custodial sentence. In its first sentencing decision under the YCJA, R. v. C.D. (2005b), the Supreme Court held that section 39(1) should be “narrowly construed,” emphasizing that this provision should be interpreted in a manner consistent with the intent of the act, as set out in the Preamble, in a way that restricts the use of youth custody.

Further, the YCJA prohibits the use of custody sentences for “social purposes.” Section 39(5) explicitly states that a youth court “shall not” use custody as a substitute for a child protection, mental health, or other social measures.

The sentences available in youth court, and their frequency of use in 2013/2014, are shown in Table 5.1. More than half (58 %) of sentenced cases received probation, followed by community service orders (25 %>) and sentences of custody (15 %). Other types of sentences were used infrequently.

Table 5.1. Distribution of sentences handed down in youth justice court,

Canada, 2013/2014

Type of sentence

Number

Percent

Total sentenced cases

22,524

Custody and supervision

3361

14.9

Deferred custody and supervision

1062

4.7

Intensive support and supervision

285

1.3

Probation

12,992

57.7

Community service order

5601

24.9

Attend a nonresidential program

226

1.0

Fine

719

3.2

Reprimand

625

2.8

Other sentences1

8347

37.1

Note: Percentages add to more than 100 % because multiple sentences may be given in a case. Prepared by the authors using data from CANSIM Table 252-0067 (Statistics Canada 2015b)

““Other sentences” include absolute discharge, restitution, prohibition, seizure, forfeiture, compensation, pay purchaser, essays, apologies, counseling programs, and conditional discharge. This category also includes deferred custody and supervision, intensive support and supervision, attendance at nonresidential program, and reprimand for jurisdictions and years for which these types of sentence are combined

The YCJA had a large effect on the use of custodial sentences for youth (Fig. 5.5). The percent of cases with a finding of guilt in which a custodial sentence was handed down increased between 1991/1992 and 2002/2003, from 24 % to 27 %. In 2003-2004, the first year that the YCJA was in force, custody dropped from 27 % to 22 % of sentences and then to 21 % in the following year and continued to fall until it leveled off at 15 % in 2009/2010. With the drop in per capita rates of cases coming to court and resulting in a finding of guilt (Fig. 5.4) and the decline in the percent of guilty cases receiving a custodial sentence, the resulting per capita rate of cases receiving a custodial sentence fell dramatically: from 660 per 100,000 youth in 1991/1992 to 524 in 2002/2003, then to 337 with the coming into force of the YCJA in 2003/2004, and to 141 in 2013/2014. In 2013/2014, the per capita rate of custodial sentences was approximately one-fifth (21 %) of the rate in 1991/1992. The actual number of young persons receiving a custodial sentence in 2013/2014 was 3361 compared with 15,016 in 1991/1992.

The reduction in youth court cases and in the use of custodial sentences resulted in a very substantial decrease in the numbers and per capita rates of youth in sentenced custody (Fig. 5.6). From 1997/1998 to 2003/2004, the average daily per capita rate of youth held in sentenced custody[1] decreased by approximately 7 % per year. In 2003/2004, the first year that the YCJA was in effect, it dropped from 127 to 68 per 100,000 youth: a drop of 46 % in 1 year. From 2003/2004 to 2013/2014, it fell further by an average of 8 % per year. The per

Trends in youth receiving custodial sentences, Canada, 1991/1992- 2013/2014. Note

Figure 5.5. Trends in youth receiving custodial sentences, Canada, 1991/1992- 2013/2014. Note: Prepared by the authors using data from CANSIM Table 252-0067 (Statistics Canada 2015b).

Trends in average daily rates of incarcerated youth, Canada, 1997/1998- 2013/2014. Note

Figure 5.6. Trends in average daily rates of incarcerated youth, Canada, 1997/1998- 2013/2014. Note: Quebec and Alberta are excluded due to the unavailability of data for some years. Prepared by the authors using data from CANSIM Table 252-0008 (Statistics Canada 2015b).

capita rate of youth in sentenced custody in 2013/2014 was 30 per 100,000 or 16 % of the rate in 1997/1998 (186). The average daily number of youth held in sentenced custody in Canada, in 2013/2014, was about 475, which is roughly 16 % of the number (approximately 3000) in 1997/1998.[2]

  • [1] In Canada, excluding Quebec and Alberta, due to unavailability of data for some years for thoseprovinces
  • [2] The excluded provinces, Quebec and Alberta, accounted for approximately 35 % of the populationof Canada in 2014 (Statistics Canada 2015c).
 
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