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Canadian Young Offenders Law

Canadian Young Offenders

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Canadian Young Offenders Law - Two sections found unconstitutional:

October 19, 2004 - Two sections of the Youth Criminal Justice Act ruled unconstitutional by BC judge.

Two sections of Canada's young offenders law are unconstitutional because they violate Charter of Rights guarantees against age discrimination, a Vancouver judge ruled yesterday.

Provincial Court Judge Brian Davis struck down sections of the Youth Criminal Justice Act that require violent young offenders to serve custodial sentences when an adult could merely serve house arrest for the same crime.

Discriminating against offenders under 18 "promotes the view that the young person is less worthy of recognition as a member of Canadian society," Judge Davis said.

"That is, he must to go jail and serve his time in jail, as opposed to serving his custodial sentence in the community."

The ruling does not bind other lower court judges, but it may have what the courts refer to as "persuasive impact" on them.

The first section struck down yesterday denies conditional sentences for any young offender who commits a serious violent offence. The second one denies the sentence for young offenders sentenced for more than six months.

Canadian Young Offenders Law -When the Youth Criminal Justice Act Became Law

The Youth Criminal Justice Act came into effect on April 1, 2003. It introduces sweeping changes to the way in which the criminal justice system deals with young persons.

Who is Affected

The YCJA is applicable to young persons aged 12 to 17 at the time of the alleged offence.

What Offences are Included

The YCJA governs criminal law and is subject to the Federal Laws of Canada and not provincial law.

Principles Underlying the YCJA

The Preamble - While not legally enforceable, the preamble to the YCJA contains significant statements from parliament about the values on which the legislation is based. These statements can be used to help interpret the legislation and include:

  • Society has a responsibility to address the developmental challenges and needs of young persons. Communities and families should work in partnership with others to prevent youth crime by addressing its underlying causes, responding to the needs of young persons and providing guidance and support. Accurate information about youth crime, the youth justice system and effective measures should be publicly available. Young persons have rights and freedoms, including those set out in the United Nations Convention on the Rights of the Child. The youth justice system should take account of the interests of victims and ensure accountability through meaningful consequences and rehabilitation and reintegration.
  • The youth justice system should reserve its most serious interventions for the most serious crimes and reduce the over-reliance on incarceration.

Canadian Young Offenders Law - The Declaration of Principle Provides that:

  • The objectives of the youth justice system are to prevent crime; rehabilitate and reintegrate young persons into society; and ensure meaningful consequences for offences. In these ways, the system can contribute to the long-term protection of society.
    The youth justice system must reflect the fact that young persons lack the maturity of adults.
    The youth system is different from the adult system in many respects, including: measures of accountability are consistent with young persons' reduced level of maturity; procedural protections are enhanced; rehabilitation and reintegration are given special emphasis; and the importance of timely intervention is recognized.
    Young persons are to be held accountable through interventions that are fair and in proportion to the seriousness of the offence.
    Within the limits of fair and proportionate accountability, interventions should reinforce respect for societal values, encourage the repair of harm done, be meaningful to the young person, respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements.
    Youth justice proceedings require special guarantees to protect the rights of young people; courtesy, compassion and respect for victims; the opportunity for victims to be informed and to participate; and
  • that parents be informed and encouraged to participate in addressing the young person's offending behaviour.

Canadian Young Offenders Law -Major Provisions of The Youth Criminal Justice Act

  • allows an adult sentence for any youth 14 years old or more who is convicted of an offence punishable by more than two years in jail, if the Crown applies and the court finds it appropriate in the circumstances;
    expands the offences for which a young person convicted of an offence would be presumed to receive an adult sentence from murder, attempted murder, manslaughter and aggravated sexual assault to include a new category of a pattern of serious violent offences;
    lowers the age for youth who are presumed to receive an adult sentence for the above offences to include 14- and 15-year-olds;
    permits the publication of names of all youth who receive an adult sentence. Publication of the names of 14- to 17-year-olds who receive a youth sentence for murder, attempted murder, manslaughter, aggravated sexual assault or repeat serious violent offences will also be permitted;
    allows the Crown greater discretion in seeking adult sentences and publication of offenders' names;
    creates a special sentence for serious violent offenders who suffer from mental illness, psychological disorder or emotional disturbance that will include an individualized plan for custodial treatment and intensive control and supervision;
    promotes a constructive role for victims and communities, including ensuring they receive the information they need and have opportunities to be involved in the youth justice system;
    gives the courts more discretion to receive as evidence voluntary statements by youth to police;
    requires all periods of custody to be followed by a period of controlled supervision in the community to support safe and effective reintegration;
    permits tougher penalties for adults who wilfully fail to comply with an undertaking made to the court to properly supervise youth who have been denied bail and placed in their care. This responds to a proposal made by Chuck Cadman, M.P. (Surrey North) in a private member's bill;
    permits the provinces to require young people or their parents to pay for their legal counsel in cases where they are fully capable of paying;
    allows for and encourages the use of a full range of community-based sentences and effective alternatives to the justice system for youth who commit non-violent offences; and
  • recognize the principles of the United Nation Convention on the Rights of the Child, to which Canada is a signatory.
May. 2, 2003 - Toronto Star Article

Youth crime law to get overhaul
Ottawa to consult with provinces on possible amendments
Won't appeal Quebec ruling declaring parts unconstitutional

OTTAWA BUREAUOTTAWA - The federal government will not appeal a Quebec court ruling that declared certain provisions in the new Youth Criminal Justice Act unconstitutional.And Justice Minister Martin Cauchon made it clear yesterday it is already open to other changes in the act, which only came into effect April 1.The act, which has been fiercely opposed by Quebec as too harsh and Ontario as too lenient, attempted to strike a balance between getting tough with youth who commit serious crimes and rehabilitating less serious offenders with non-jail solutions. But already it appears set for the same fate as its predecessor, the much-maligned 1984 Young Offenders Act, often criticized as not tough enough and frequently amended in response to pressure from the provinces, police and victims groups.The government will go ahead with consultations with the provinces to determine what amendments should be made to the act, Cauchon said. Amendments will not be put in place until at least the fall. Quebec viewed the federal law as overly harsh, infringing on provincial jurisdiction and violating the legal and human rights of young people. The province challenged its constitutionality by referring the matter to the Quebec Court of Appeal.A court tribunal ruled on March 31 that two sections of the Act, dealing with sentencing a minor as an adult, and having a youth's identity publicly disclosed, violated Canada's Charter of Rights and Freedoms. Cauchon acknowledged the ruling in the House of Commons yesterday the last day to appeal and said the government would not argue against it at the Supreme Court. "We have decided today to not proceed with an appeal," Cauchon said, "since there is means to meet the intention of the legislation in a different way." The appeal court found it wrong that the onus was on the young offender to argue against a tougher adult sentence being imposed rather than on the crown to argue why it should be.It also didn't like the burden being placed on the young offender to argue that information about his or her sentence should not be made public, said Catherine Latimer, the justice department's director-general of youth justice policy. But the burden will now be on the crown to show the sentences are necessary and that information can be publicly revealed, Latimer said." The public needs to be assured adult penalties will still be available," she said. Latimer stressed the Quebec ruling was a declaratory judgment in effect, an opinion of the judges that does not strike down the provisions of the act." Our conclusion is that our policy objectives can be achieved without violating rights," she added. The new act requires police to consider alternatives to laying a criminal charge, including letting a youth off with a warning, a formal caution or referring the youth to a community program. Judges are also obliged to consider all reasonable alternatives to custody. It's tougher in some ways. For instance, it lowers, to 14 from 16 , the age at which it's presumed youths will be sentenced as adults for crimes such as homicide and aggravated sexual assault.

Canada now has one of the highest youth-incarceration rates among Western countries.

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