Youth Criminal Justice Act (S.C. 2002, c. 1)

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 previously been found guilty of an offence under section 137 in relation to more than one sentence and, if the court is imposing a sentence for an offence under subsections 145(2) to (5) of the Criminal Code or section 137, the young person caused harm, or a risk of harm, to the safety of the public in committing that offence;

  • (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 either extrajudicial sanctions or of findings of guilt or of both 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).

Youth Sentences

Marginal note:Recommendation of conference

41 When a youth justice court finds a young person guilty of an offence, the court may convene or cause to be convened a conference under section 19 for recommendations to the court on an appropriate youth sentence.

Marginal note:Considerations as to youth sentence

• 42 (1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under section 41, any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.

• Marginal note:Youth sentence

  (2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:

  • (a) reprimand the young person;

  • (b) by order direct that the young person be discharged absolutely, if the court considers it to be in the best interests of the young person and not contrary to the public interest;

  • (c) by order direct that the young person be discharged on any conditions imposed by the court in accordance with paragraph 38(2)(e.1) and may require the young person to report to and be supervised by the provincial director;

  • (d) impose on the young person a fine not exceeding $1,000 to be paid at the time and on the terms that the court may fix;

  • (e) order the young person to pay to any other person at the times and on the terms that the court may fix an amount by way of compensation for loss of or damage to property or for loss of income or support, or an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, for personal injury arising from the commission of the offence if the value is readily ascertainable, but no order shall be made for other damages in the Province of Quebec or for general damages in any other province;

  • (f) order the young person to make restitution to any other person of any property obtained by the young person as a result of the commission of the offence within the time that the court may fix, if the property is owned by the other person or was, at the time of the offence, in his or her lawful possession;

  • (g) if property obtained as a result of the commission of the offence has been sold to an innocent purchaser, where restitution of the property to its owner or any other person has been made or ordered, order the young person to pay the purchaser, at the time and on the terms that the court may fix, an amount not exceeding the amount paid by the purchaser for the property;

  • (h) subject to section 54, order the young person to compensate any person in kind or by way of personal services at the time and on the terms that the court may fix for any loss, damage or injury suffered by that person in respect of which an order may be made under paragraph (e) or (g);

  • (i) subject to section 54, order the young person to perform a community service at the time and on the terms that the court may fix, and to report to and be supervised by the provincial director or a person designated by the youth justice court;

  • (j) subject to section 51 (mandatory prohibition order), make any order of prohibition, seizure or forfeiture that may be imposed under any Act of Parliament or any regulation made under it if an accused is found guilty or convicted of that offence, other than an order under section 161 of the Criminal Code;

  • (k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;

  • (l) subject to subsection (3) (agreement of provincial director), order the young person into an intensive support and supervision program approved by the provincial director;

  • (m) subject to subsection (3) (agreement of provincial director) and section 54, order the young person to attend a non-residential program approved by the provincial director, at the times and on the terms that the court may fix, for a maximum of two hundred and forty hours, over a period not exceeding six months;

  • (n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;

  • (o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105;

  • (p) subject to subsection (5), make a deferred custody and supervision order that is for a specified period not exceeding six months, subject to the conditions set out in subsection 105(2), and to any conditions set out in subsection 105(3) that the court considers appropriate;

  • (q) order the young person to serve a sentence not to exceed

    • (i) in the case of first degree murder, ten years comprised of

      • (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed six years from the date of committal, and

      • (B) a placement under conditional supervision to be served in the community in accordance with section 105, and

    • (ii) in the case of second degree murder, seven years comprised of

      • (A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and

      • (B) a placement under conditional supervision to be served in the community in accordance with section 105;

  • (r) subject to subsection (7), make an intensive rehabilitative custody and supervision order in respect of the young person

    • (i) that is for a specified period that must not exceed

      • (A) two years from the date of committal, or

      • (B) if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of committal,

      and that orders the young person to be committed into a continuous period of intensive rehabilitative custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder under conditional supervision in the community in accordance with section 105,

    • (ii) that is for a specified period that must not exceed, in the case of first degree murder, ten years from the date of committal, comprising

      • (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed six years from the date of committal, and

      • (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105, and

    • (iii) that is for a specified period that must not exceed, in the case of second degree murder, seven years from the date of committal, comprising

      • (A) a committal to intensive rehabilitative custody, to be served continuously, for a period that must not exceed four years from the date of committal, and

      • (B) subject to subsection 104(1) (continuation of custody), a placement under conditional supervision to be served in the community in accordance with section 105; and

  • (s) impose on the young person, in accordance with paragraph 38(2)(e.1), any other conditions that the court considers appropriate.

• Marginal note:Agreement of provincial director

  (3) A youth justice court may make an order under paragraph (2)(l) or (m) only if the provincial director has determined that a program to enforce the order is available.

• Marginal note:Youth justice court statement

  (4) When the youth justice court makes a custody and supervision order with respect to a young person under paragraph (2)(n), the court shall state the following with respect to that order:

  You are ordered to serve (state the number of days or months to be served) in custody, to be followed by (state one-half of the number of days or months stated above) to be served under supervision in the community subject to conditions.

  If you breach any of the conditions while you are under supervision in the community, you may be brought back into custody and required to serve the rest of the second period in custody as well.

  You should also be aware that, under other provisions of the Youth Criminal Justice Act, a court could require you to serve the second period in custody as well.

  The periods in custody and under supervision in the community may be changed if you are or become subject to another sentence.

• Marginal note:Deferred custody and supervision order

  (5) The court may make a deferred custody and supervision order under paragraph (2)(p) if

  • (a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and

  • (b) it is consistent with the purpose and principles set out in section 38 and the restrictions on custody set out in section 39.

• Marginal note:Application of sections 106 to 109

  (6) Sections 106 to 109 (suspension of conditional supervision) apply to a breach of a deferred custody and supervision order made under paragraph (2)(p) as if the breach were a breach of an order for conditional supervision made under subsection 105(1) and, for the purposes of sections 106 to 109, supervision under a deferred custody and supervision order is deemed to be conditional supervision.

• Marginal note:Intensive rehabilitative custody and supervision order

  (7) A youth justice court may make an intensive rehabilitative custody and supervision order under paragraph (2)(r) in respect of a young person only if

  • (a) either

    • (i) the young person has been found guilty of a serious violent offence, or

    • (ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence;

  • (b) the young person is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance;

  • (c) a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence; and

  • (d) the provincial director has determined that an intensive rehabilitative custody and supervision program is available and that the young person’s participation in the program is appropriate.

• Marginal note:Safeguard of rights

  (8) Nothing in this section abrogates or derogates from the rights of a young person regarding consent to physical or mental health treatment or care.

• (9) and (10) [Repealed, 2012, c. 1, s. 174]

• Marginal note:Inconsistency

  (11) An order may not be made under paragraphs (2)(k) to (m) in respect of an offence for which a conditional discharge has been granted under paragraph (2)(c).

• Marginal note:Coming into force of youth sentence

  (12) A youth sentence or any part of it comes into force on the date on which it is imposed or on any later date that the youth justice court specifies.

• Marginal note:Consecutive youth sentences

  (13) Subject to subsections (15) and (16), a youth justice court that sentences a young person may direct that a sentence imposed on the young person under paragraph (2)(n), (o), (q) or (r) be served consecutively if the young person

  • (a) is sentenced while under sentence for an offence under any of those paragraphs; or

  • (b) is found guilty of more than one offence under any of those paragraphs.

• Marginal note:Duration of youth sentence for a single offence

  (14) No youth sentence, other than an order made under paragraph (2)(j), (n), (o), (q) or (r), shall continue in force for more than two years. If the youth sentence comprises more than one sanction imposed at the same time in respect of the same offence, the combined duration of the sanctions shall not exceed two years, unless the sentence includes a sanction under paragraph (2)(j), (n), (o), (q) or (r) that exceeds two years.

• Marginal note:Duration of youth sentence for different offences

  (15) Subject to subsection (16), if more than one youth sentence is imposed under this section in respect of a young person with respect to different offences, the continuous combined duration of those youth sentences shall not exceed three years, except if one of the offences is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, in which case the continuous combined duration of those youth sentences shall not exceed ten years in the case of first degree murder, or seven years in the case of second degree murder.

• Marginal note:Duration of youth sentences made at different times

  (16) If a youth sentence is imposed in respect of an offence committed by a young person after the commencement of, but before the completion of, any youth sentences imposed on the young person,

  • (a) the duration of the sentence imposed in respect of the subsequent offence shall be determined in accordance with subsections (14) and (15);

  • (b) the sentence may be served consecutively to the sentences imposed in respect of the previous offences; and

  • (c) the combined duration of all the sentences may exceed three years and, if the offence is, or one of the previous offences was,

    • (i) first degree murder within the meaning of section 231 of the Criminal Code, the continuous combined duration of the youth sentences may exceed ten years, or

    • (ii) second degree murder within the meaning of section 231 of the Criminal Code, the continuous combined duration of the youth sentences may exceed seven years.

• Marginal note:Sentence continues when adult

  (17) Subject to sections 89, 92 and 93 (provisions related to placement in adult facilities) of this Act and section 743.5 (transfer of jurisdiction) of the Criminal Code, a youth sentence imposed on a young person continues in effect in accordance with its terms after the young person becomes an adult.