Youth Sentencing

According to the Canadian Sentencing Commission, sentencing is defined as:
- “the judicial determination of a legal sanction to be imposed on a person found guilty of an offence”
- Reference: (Canadian Sentencing Commission, 1987, 153)

Section 11(1): If the penalty for an offence changes between the time of the commission of the offence and the sentence they will receive, they will receive the lesser penalty.
Section 11(h): No individual can be tried or punished twice for the same offence.
Section 12: Every individual has the right not to be subjected to any cruel and unusual punishment or treatment.

Also referred to as “dead time”.
It is the period of time during which an offender is in custody awaiting trial.
Legislation limits the maximum credit to one and a half days for every day served in pre-trial custody for youth as stated in Criminal Code section 719(3).

In Canada, a life sentence is defined as an indefinite period of time.
For First Degree Murder and Second Degree Murder:
  - An automatic life sentence is applied.
  - First Degree Murder: Eligible for parole after 25 years in custody.
  - Second Degree Murder: Eligible for parole after a period that is determined, typically between 10-15 years.

Under the Youth Criminal Justice Act (YCJA) section 38 there exist several key sentencing principles:
  - To hold a young person accountable for committing an offence using sanctions that have meaningful consequences.
  - Promote both rehabilitation and reintegration into society.
  - Contribute to the long-term protection of the public.

A young person cannot receive a harsher sentence than an adult would receive for a comparable offence.
Sentences should be comparable to those imposed on other young persons.
Consider all available sanctions other than custody that are reasonable in the circumstances, especially for aboriginal youth.
Sentences should be the least restrictive and most likely to rehabilitate and reintegrate a young person into society.
Recent amendments allow consideration of the concept of deterrence.

Youth court must ensure that a young person is only committed to a custodial sentence if any of the following are met:
  - The young person committed a violent offence.
  - The young person failed to comply with a noncustodial sentence.
  - There is a pattern of findings of guilt for indictable offences that would incur more than a two-year sentence for an adult.
A fundamental principle of the YCJA is that custody is viewed as a last resort for young persons.
Courts must ensure that other options are considered before sentencing a young person to custody.

Pre-Sentence Report (PSR):
- Required under the Act, the judge must consider a PSR prior to imposing a sentence (as per section 40 YCJA).
- The PSR includes information about the accused young person and any relevant information that can assist the judge.

Reprimand: A verbal “lecture” from the court.
Absolute Discharge: Finding of guilt without sanctions.
Conditional Discharge: The youth must comply with specified conditions, usually accompanied by a probation order.
Fine: Maximum of $1,000.
Restitution: Payment made to the victim.
Community Service: Maximum of 240 hours.
Personal Services: Service ordered to be performed for the victim.
Probation: Maximum duration of 2 years, includes conditions.
Deferred Custody: Maximum of 6 months, allows the youth to live in the community under conditions, with breaches resulting in a return to court for potential custody.
Intensive Rehabilitative Custody and Supervision: For those convicted of a third serious violent offence or severe violent offences in need of alternatives to regular custody who also suffer from a mental illness or disorder.

The YCJA stipulates that a young person must spend the last third of their sentence in the community.
Community supervision will be guided by a reintegration plan developed during custody.
If the young person is not given an adult sentence, the maximum sentence is 10 years:
  - 6 years in custody, 4 years of community supervision for First Degree Murder.
  - 7 years for Second Degree Murder: 4 years in custody, 3 years community supervision.
  - For other offences that could lead to life sentences in adults, the maximum is 3 years: 2 years in custody, 1 year in community supervision.
  - Maximum sentence for all other offences is 2 years with 16 months in custody and 8 months community supervision.

The YCJA permits youth to receive adults sentences for serious offences, specifically if the offence is indictable and if an adult would receive a sentence of 2 years or longer.
Eligibility applies if the youth has achieved their 14th birthday at the time of the incident.
The YCJA does not allow for transferring young persons to adult court but permits adult sentencing within youth court.
It is the crown's responsibility to demonstrate (beyond reasonable doubt) why the youth should receive an adult sentence.
Test for adult sentence appropriateness (as per section 72 YCJA):
- It must be decided whether the YCJA-sentencing would be of sufficient length to hold the young person accountable.
- Presumption of diminished moral blameworthiness or culpability must be rebutted.

For a youth convicted of First Degree Murder, they may receive an adult sentence that is an automatic life sentence.
This sentence is indefinite, with parole eligibility as follows:
- 10 years in custody (for ages 16 or 17).
- 7 years in custody (for ages 14 or 15).

Definition: Criminal records are established when a person has a criminal conviction.
For adults, a criminal conviction is maintained for life unless a pardon is granted.
Adults have no criminal record for absolute discharges or successful conditional discharges.
For youth under the YCJA:
  - Criminal convictions are automatically destroyed after specified periods:
    - Summary convictions: 3 years post-sentence completion.
    - Indictable convictions: 5 years post-sentence completion.
    - Conditional discharges: 3 years post-sentence completion.
    - Absolute discharges: 1 year post-conviction.
    - Judicial reprimands: 2 months post-reprimand.
A youth may be found guilty or plead guilty without having a conviction.
- For absolute discharges, there is a finding of guilt without a conviction.
- A conditional discharge that is completed successfully becomes an absolute discharge without a conviction.
Youth who receive an adult sentence will be treated as adults concerning criminal records.