Marginal note:Release entitlement

• 78. (1) For greater certainty, section 6 of the Prisons and Reformatories Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a prison.

• Marginal note:Release entitlement

  (2) For greater certainty, section 127 of the Corrections and Conditional Release Act applies to a young person who is ordered to serve a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) only if section 743.1 (rules respecting sentences of two or more years) of the Criminal Code would direct that the young person serve the sentence in a penitentiary.

Marginal note:If person convicted under another Act

79. If a person who is serving all or a portion of a sentence in a youth custody facility under paragraph 76(1)(a) (placement when subject to adult sentence) is sentenced to a term of imprisonment under an Act of Parliament other than this Act, the remainder of the portion of the sentence being served in the youth custody facility shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.

Marginal note:If person who is serving a sentence under another Act is sentenced to an adult sentence

80. If a person who has been serving a sentence of imprisonment under an Act of Parliament other than this Act is sentenced to an adult sentence of imprisonment under this Act, the sentences shall be served in a provincial correctional facility for adults or a penitentiary, in accordance with section 743.1 (rules respecting sentences of two or more years) of the Criminal Code.

Marginal note:Procedure for application or notice

81. An application or a notice to the court under section 63, 64, 65 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.

Effect of Termination of Youth Sentence

Marginal note:Effect of absolute discharge or termination of youth sentence

• 82. (1) Subject to section 12 (examination as to previous convictions) of the Canada Evidence Act, if a young person is found guilty of an offence, and a youth justice court directs under paragraph 42(2)(b) that the young person be discharged absolutely, or the youth sentence, or any disposition made under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, has ceased to have effect, other than an order under section 51 (mandatory prohibition order) of this Act or section 20.1 (mandatory prohibition order) of the Young Offenders Act, the young person is deemed not to have been found guilty or convicted of the offence except that

  • (a) the young person may plead autrefois convict in respect of any subsequent charge relating to the offence;

  • (b) a youth justice court may consider the finding of guilt in considering an application under subsection 63(1) (application for youth sentence) or 64(1) (application for adult sentence);

  • (c) any court or justice may consider the finding of guilt in considering an application for judicial interim release or in considering what sentence to impose for any offence; and

  • (d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or pardon.

• Marginal note:Disqualifications removed

  (2) For greater certainty and without restricting the generality of subsection (1), an absolute discharge under paragraph 42(2)(b) or the termination of the youth sentence or disposition in respect of an offence for which a young person is found guilty removes any disqualification in respect of the offence to which the young person is subject under any Act of Parliament by reason of a finding of guilt.

• Marginal note:Applications for employment

  (3) No application form for or relating to the following shall contain any question that by its terms requires the applicant to disclose that he or she has been charged with or found guilty of an offence in respect of which he or she has, under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, been discharged absolutely, or has completed the youth sentence under this Act or the disposition under the Young Offenders Act:

  • (a) employment in any department, as defined in section 2 of the Financial Administration Act;

  • (b) employment by any Crown corporation, as defined in section 83 of the Financial Administration Act;

  • (c) enrolment in the Canadian Forces; or

  • (d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

• Marginal note:Finding of guilt not a previous conviction

  (4) A finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions, except for

  • (a) the purpose of establishing that an offence is a presumptive offence within the meaning of paragraph (b) of the definition “presumptive offence” in subsection 2(1); or

  • (b) the purpose of determining the adult sentence to be imposed.

PART 5CUSTODY AND SUPERVISION

Marginal note:Purpose

• 83. (1) The purpose of the youth custody and supervision system is to contribute to the protection of society by

  • (a) carrying out sentences imposed by courts through the safe, fair and humane custody and supervision of young persons; and

  • (b) assisting young persons to be rehabilitated and reintegrated into the community as law-abiding citizens, by providing effective programs to young persons in custody and while under supervision in the community.

• Marginal note:Principles to be used

  (2) In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose:

  • (a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used;

  • (b) that young persons sentenced to custody retain the rights of other young persons, except the rights that are necessarily removed or restricted as a consequence of a sentence under this Act or another Act of Parliament;

  • (c) that the youth custody and supervision system facilitate the involvement of the families of young persons and members of the public;

  • (d) that custody and supervision decisions be made in a forthright, fair and timely manner, and that young persons have access to an effective review procedure; and

  • (e) that placements of young persons where they are treated as adults not disadvantage them with respect to their eligibility for and conditions of release.

Marginal note:Young person to be held apart from adults

84. Subject to subsection 30(3) (pre-trial detention), paragraphs 76(1)(b) and (c) (placement in adult facilities with adult sentence) and sections 89 to 93 (placement in adult facilities with youth sentence), a young person who is committed to custody shall be held separate and apart from any adult who is detained or held in custody.

Marginal note:Levels of custody

• 85. (1) In the youth custody and supervision system in each province there must be at least two levels of custody for young persons distinguished by the degree of restraint of the young persons in them.

• Marginal note:Designation of youth custody facilities

  (2) Every youth custody facility in a province that contains one or more levels of custody shall be designated by

  • (a) in the case of a youth custody facility with only one level of custody, being the level of custody with the least degree of restraint of the young persons in it, the lieutenant governor in council or his or her delegate; and

  • (b) in any other case, the lieutenant governor in council.

• Marginal note:Provincial director to specify custody level — committal to custody

  (3) The provincial director shall, when a young person is committed to custody under paragraph 42(2)(n), (o), (q) or (r) or an order is made under subsection 98(3), paragraph 103(2)(b), subsection 104(1) or paragraph 109(2)(b), determine the level of custody appropriate for the young person, after having taken into account the factors set out in subsection (5).

• Marginal note:Provincial director to specify custody level — transfer

  (4) The provincial director may determine a different level of custody for the young person when the provincial director is satisfied that the needs of the young person and the interests of society would be better served by doing so, after having taken into account the factors set out in subsection (5).

• Marginal note:Factors

  (5) The factors referred to in subsections (3) and (4) are

  • (a) that the appropriate level of custody for the young person is the one that is the least restrictive to the young person, having regard to

    • (i) the seriousness of the offence in respect of which the young person was committed to custody and the circumstances in which that offence was committed,

    • (ii) the needs and circumstances of the young person, including proximity to family, school, employment and support services,

    • (iii) the safety of other young persons in custody, and

    • (iv) the interests of society;

  • (b) that the level of custody should allow for the best possible match of programs to the young person’s needs and behaviour, having regard to the findings of any assessment in respect of the young person; and

  • (c) the likelihood of escape.

• Marginal note:Placement and transfer at appropriate level

  (6) After the provincial director has determined the appropriate level of custody for the young person under subsection (3) or (4), the young person shall be placed in the youth custody facility that contains that level of custody specified by the provincial director.

• Marginal note:Notice

  (7) The provincial director shall cause a notice in writing of a determination under subsection (3) or (4) to be given to the young person and a parent of the young person and set out in that notice the reasons for it.