Appeals

Marginal note:Appeals

• 37. (1) An appeal in respect of an indictable offence or an offence that the Attorney General elects to proceed with as an indictable offence lies under this Act in accordance with Part XXI (appeals — indictable offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Appeals for contempt of court

  (2) A finding of guilt under section 15 for contempt of court or a sentence imposed in respect of the finding may be appealed as if the finding were a conviction or the sentence were a sentence in a prosecution by indictment.

• Marginal note:Appeal

  (3) Section 10 of the Criminal Code applies if a person is convicted of contempt of court under subsection 27(4) (failure of parent to attend court).

• Marginal note:Appeals to be heard together

  (4) A judicial determination under subsection 42(9) (judicial determination of serious violent offence), or an order under subsection 72(1) (court order — adult or youth sentence), 75(3) (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.

• Marginal note:Appeals for summary conviction offences

  (5) An appeal in respect of an offence punishable on summary conviction or an offence that the Attorney General elects to proceed with as an offence punishable on summary conviction lies under this Act in accordance with Part XXVII (summary conviction offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Appeals where offences are tried jointly

  (6) An appeal in respect of one or more indictable offences and one or more summary conviction offences that are tried jointly or in respect of which youth sentences are jointly imposed lies under this Act in accordance with Part XXI (appeals — indictable offences) of the Criminal Code, which Part applies with any modifications that the circumstances require.

• Marginal note:Deemed election

  (7) For the purpose of appeals under this Act, if no election is made in respect of an offence that may be prosecuted by indictment or proceeded with by way of summary conviction, the Attorney General is deemed to have elected to proceed with the offence as an offence punishable on summary conviction.

• Marginal note:If the youth justice court is a superior court

  (8) In any province where the youth justice court is a superior court, an appeal under subsection (5) shall be made to the court of appeal of the province.

• Marginal note:Nunavut

  (9) Despite subsection (8), if the Nunavut Court of Justice is acting as a youth justice court, an appeal under subsection (5) shall be made to a judge of the Nunavut Court of Appeal, and an appeal of that judge’s decision shall be made to the Nunavut Court of Appeal in accordance with section 839 of the Criminal Code.

• Marginal note:Appeal to the Supreme Court of Canada

  (10) No appeal lies under subsection (1) from a judgment of the court of appeal in respect of a finding of guilt or an order dismissing an information or indictment to the Supreme Court of Canada unless leave to appeal is granted by the Supreme Court of Canada.

• Marginal note:No appeal from youth sentence on review

  (11) No appeal lies from a youth sentence under section 59 or any of sections 94 to 96.

PART 4SENTENCING

Purpose and Principles

Marginal note:Purpose

• 38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

• Marginal note:Sentencing principles

  (2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

  • (a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

  • (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

  • (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

  • (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; and

  • (e) subject to paragraph (c), the sentence must

    • (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

    • (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

    • (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community.

• Marginal note:Factors to be considered

  (3) In determining a youth sentence, the youth justice court shall take into account

  • (a) the degree of participation by the young person in the commission of the offence;

  • (b) the harm done to victims and whether it was intentional or reasonably foreseeable;

  • (c) any reparation made by the young person to the victim or the community;

  • (d) the time spent in detention by the young person as a result of the offence;

  • (e) the previous findings of guilt of the young person; and

  • (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Marginal note:Committal to custody

• 39. (1) A youth justice court shall not commit a young person to custody under section 42 (youth sentences) unless

  • (a) the young person has committed a violent offence;

  • (b) the young person has failed to comply with non-custodial sentences;

  • (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 findings of guilt under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or

  • (d) in exceptional cases where the young person has committed an indictable offence, the aggravating circumstances of the offence are such that the imposition of a non-custodial sentence would be inconsistent with the purpose and principles set out in section 38.

• Marginal note:Alternatives to custody

  (2) If any of paragraphs (1)(a) to (c) apply, a youth justice court shall not impose a custodial sentence under section 42 (youth sentences) unless the court has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances, and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38.

• Marginal note:Factors to be considered

  (3) In determining whether there is a reasonable alternative to custody, a youth justice court shall consider submissions relating to

  • (a) the alternatives to custody that are available;

  • (b) the likelihood that the young person will comply with a non-custodial sentence, taking into account his or her compliance with previous non-custodial sentences; and

  • (c) the alternatives to custody that have been used in respect of young persons for similar offences committed in similar circumstances.

• Marginal note:Imposition of same sentence

  (4) The previous imposition of a particular non-custodial sentence on a young person does not preclude a youth justice court from imposing the same or any other non-custodial sentence for another offence.

• Marginal note:Custody as social measure prohibited

  (5) A youth justice court shall not use custody as a substitute for appropriate child protection, mental health or other social measures.

• Marginal note:Pre-sentence report

  (6) Before imposing a custodial sentence under section 42 (youth sentences), a youth justice court shall consider a pre-sentence report and any sentencing proposal made by the young person or his or her counsel.

• Marginal note:Report dispensed with

  (7) A youth justice court may, with the consent of the prosecutor and the young person or his or her counsel, dispense with a pre-sentence report if the court is satisfied that the report is not necessary.

• Marginal note:Length of custody

  (8) In determining the length of a youth sentence that includes a custodial portion, a youth justice court shall be guided by the purpose and principles set out in section 38, and shall not take into consideration the fact that the supervision portion of the sentence may not be served in custody and that the sentence may be reviewed by the court under section 94.

• Marginal note:Reasons

  (9) If a youth justice court imposes a youth sentence that includes a custodial portion, the court shall state the reasons why it has determined that a non-custodial sentence is not adequate to achieve the purpose set out in subsection 38(1), including, if applicable, the reasons why the case is an exceptional case under paragraph (1)(d).

Pre-sentence Report

Marginal note:Pre-sentence report

• 40. (1) Before imposing sentence on a young person found guilty of an offence, a youth justice court

  • (a) shall, if it is required under this Act to consider a pre-sentence report before making an order or a sentence in respect of a young person, and

  • (b) may, if it considers it advisable,

  require the provincial director to cause to be prepared a pre-sentence report in respect of the young person and to submit the report to the court.

• Marginal note:Contents of report

  (2) A pre-sentence report made in respect of a young person shall, subject to subsection (3), be in writing and shall include the following, to the extent that it is relevant to the purpose and principles of sentencing set out in section 38 and to the restrictions on custody set out in section 39:

  • (a) the results of an interview with the young person and, if reasonably possible, the parents of the young person and, if appropriate and reasonably possible, members of the young person’s extended family;

  • (b) the results of an interview with the victim in the case, if applicable and reasonably possible;

  • (c) the recommendations resulting from any conference referred to in section 41;

  • (d) any information that is applicable to the case, including

    • (i) the age, maturity, character, behaviour and attitude of the young person and his or her willingness to make amends,

    • (ii) any plans put forward by the young person to change his or her conduct or to participate in activities or undertake measures to improve himself or herself,

    • (iii) subject to subsection 119(2) (period of access to records), the history of previous findings of delinquency under the Juvenile Delinquents Act, chapter J-3 of the Revised Statutes of Canada, 1970, or previous findings of guilt for offences under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or under this or any other Act of Parliament or any regulation made under it, the history of community or other services rendered to the young person with respect to those findings and the response of the young person to previous sentences or dispositions and to services rendered to him or her,

    • (iv) subject to subsection 119(2) (period of access to records), the history of alternative measures under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or extrajudicial sanctions used to deal with the young person and the response of the young person to those measures or sanctions,

    • (v) the availability and appropriateness of community services and facilities for young persons and the willingness of the young person to avail himself or herself of those services or facilities,

    • (vi) the relationship between the young person and the young person’s parents and the degree of control and influence of the parents over the young person and, if appropriate and reasonably possible, the relationship between the young person and the young person’s extended family and the degree of control and influence of the young person’s extended family over the young person, and

    • (vii) the school attendance and performance record and the employment record of the young person;

  • (e) any information that may assist the court in determining under subsection 39(2) whether there is an alternative to custody; and

  • (f) any information that the provincial director considers relevant, including any recommendation that the provincial director considers appropriate.

• Marginal note:Oral report with leave

  (3) If a pre-sentence report cannot reasonably be committed to writing, it may, with leave of the youth justice court, be submitted orally in court.

• Marginal note:Report forms part of record

  (4) A pre-sentence report shall form part of the record of the case in respect of which it was requested.

• Marginal note:Copies of pre-sentence report

  (5) If a pre-sentence report made in respect of a young person is submitted to a youth justice court in writing, the court

  • (a) shall, subject to subsection (7), cause a copy of the report to be given to

    • (i) the young person,

    • (ii) any parent of the young person who is in attendance at the proceedings against the young person,

    • (iii) any counsel representing the young person, and

    • (iv) the prosecutor; and

  • (b) may cause a copy of the report to be given to a parent of the young person who is not in attendance at the proceedings if the parent is, in the opinion of the court, taking an active interest in the proceedings.

• Marginal note:Cross-examination

  (6) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the young person, his or her counsel or the adult assisting the young person under subsection 25(7) and the prosecutor shall, subject to subsection (7), on application to the court, be given the opportunity to cross-examine the person who made the report.

• Marginal note:Report may be withheld from private prosecutor

  (7) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the court may, when the prosecutor is a private prosecutor and disclosure of all or part of the report to the prosecutor might, in the opinion of the court, be prejudicial to the young person and is not, in the opinion of the court, necessary for the prosecution of the case against the young person,

  • (a) withhold the report or part from the prosecutor, if the report is submitted in writing; or

  • (b) exclude the prosecutor from the court during the submission of the report or part, if the report is submitted orally in court.

• Marginal note:Report disclosed to other persons

  (8) If a pre-sentence report made in respect of a young person is submitted to a youth justice court, the court

  • (a) shall, on request, cause a copy or a transcript of the report to be supplied to

    • (i) any court that is dealing with matters relating to the young person, and

    • (ii) any youth worker to whom the young person’s case has been assigned; and

  • (b) may, on request, cause a copy or a transcript of all or part of the report to be supplied to any person not otherwise authorized under this section to receive a copy or a transcript of the report if, in the opinion of the court, the person has a valid interest in the proceedings.

• Marginal note:Disclosure by the provincial director

  (9) A provincial director who submits a pre-sentence report made in respect of a young person to a youth justice court may make all or part of the report available to any person in whose custody or under whose supervision the young person is placed or to any other person who is directly assisting in the care or treatment of the young person.

• Marginal note:Inadmissibility of statements

  (10) No statement made by a young person in the course of the preparation of a pre-sentence report in respect of the young person is admissible in evidence against any young person in civil or criminal proceedings except those under section 42 (youth sentences), 59 (review of non-custodial sentence) or 71 (hearing — adult sentences) or any of sections 94 to 96 (reviews and other proceedings related to custodial sentences).