Youth Criminal Justice Act Lecture Notes PDF

www.opcva.ca Youth Criminal Justice Act Basic Constable Training: Lecture 2 of 2 The Practical Application of the Act Prepared By: S. Labanich Presentation Date: Version: BCT January 2022 SL © Queen's Printer for Ontario, 2018 Youth Criminal Justice Act Second Lecture Today’s topics will includ...

www.opcva.ca Youth Criminal Justice Act Basic Constable Training: Lecture 2 of 2 The Practical Application of the Act Prepared By: S. Labanich Presentation Date: Version: BCT January 2022 SL © Queen's Printer for Ontario, 2018 Youth Criminal Justice Act Second Lecture Today’s topics will include : • • • • • • Rights to counsel Notice to Parent Youth caution Cautioned Statement Sentencing Youth/As Adult/Consequences Notification and publications 2 Rights to Counsel YCJA s. 25 Young persons have a right to counsel at any stage of proceedings under the YCJA. If a young person is unable to obtain counsel, the court is required to direct that counsel be provided. • Best Practice is to read the young person their rights • Explain their Rights to them in plain language that is at their level • Have the young person explain what they understand about their rights and what they are allowed to do. ** write down in your notes what you said to the young person and what that young person said in response** 3 When you arrest a Young Person You must read each part and write what the response is by the young person Open your notebooks to the youth arrest/caution/RTC I am arresting you for __________ Do you understand? RTC: You have the right to retain and instruct counsel without delay. Do you understand? It is my duty to tell you that you also have the right to consult with a lawyer and/or your parents(s) or another adult relative or, if they are not available, some other adult. Do you understand? 4 Arrest & RTC – continued It is my duty to tell you that you also have the right to free advice from a Legal Aid Lawyer. Do you understand? If you are charged with an offence you may apply to the Ontario Legal aid Plan for free legal assistance. Do you understand? 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid Counsel Lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now? 5 Arrest & RTC continued Do you wish to call your parent(s), another adult friend or, if they are not available, another adult? If you consult with any of these three persons they are required to be present with you, unless you desire not to have them here present with you. Do you understand? It is my duty to tell you that you do not have to tell me anything about this unless you want to. Do you understand? It is also my duty to tell you that whatever you say will be taken down in writing and may be used in court against you. Do you understand? 6 YCJA Statements s. 146(2) It MUST be explained to a young person before they make a statement: • Applies to a young person’s oral or written statement. • A statement that is given to a peace officer or someone who is a person in authority by law. • The young person was arrested or detained when they gave their statement. Person in Authority—Someone engaged in the arrest, detention, examination or prosecution of the accused. (influential in the course of the prosecution). 7 YCJA Section 146(2) cont. • Reasonable grounds existed that the young person committed an offence. • Conditions in subsection 2 must be met before the statement will be admitted. Note: Very important to stress that once reasonable grounds are formed the caution must be instituted, the statement form is the only acceptable caution. Describing “when” statements are admissible combined with all criteria being met with voluntariness and Charter issues. 8 YCJA s. 146(2)(b) It MUST be explained to a young person before they make a statement: • Must be in language appropriate to age • Language appropriate to understanding • Right to speak with Counsel AND a parent • Adult relative or another adult • Statement must be made in their presence • May be waived by Y.P. 9 Hamilton Police Service – Case Study YCJA statements taken and accepted Hamilton Police Service Homicide Case All three accused provided YCJA statements after all their respective rights were met. All statements were admitted into evidence at trial Proper legal steps were adhered to, and the evidence was successful 10 Notices Section 25(9) • • • • • • appearance notice or summons warrant to arrest undertaking any notice given to young person in relation to proceedings held under sub 98(3), 103(1), 104(1), 105(1), 109(1) notice of review of youth sentence given to young person notice to parent/guardian NOTE: Rights to Counsel has emerged as an important training point for youth in particular 11 Notice to Parent YCJA s. 26 - What are the main points? 26 (1) Subject to subsection (4), if a young person is arrested and detained in custody pending their appearance in court, a peace officer shall, as soon as possible after the young person is detained, give or cause to be given to a parent of the young person, orally or in writing, notice of the arrest stating the place of detention and the reason for the arrest. Notice in other cases (2) Subject to subsection (4), if a summons or an appearance notice is issued in respect of a young person, the person who issued the summons or appearance notice, or, if a young person is released on an undertaking, a peace officer, shall, as soon as possible, give or cause to be given to a parent of the young person notice in writing of the summons, appearance notice or undertaking. 12 Notice to Parent not Served s. 26(11) (11) Where there has been a failure to give a notice under subsection (1) or (3) in accordance with this section and none of the persons to whom the notice may be given attends court with the young person, a youth justice court judge or a justice before whom proceedings are held against the young person may: (a) adjourn the proceedings and order that the notice be given in the manner and to the persons that the judge or justice directs; or (b) dispense with the notice if the judge or justice is of the opinion that, having regard to the circumstances, the notice may be dispensed with. 13 Order requiring attendance of parent YCJA s. 27(1) If a parent does not attend proceedings held before a youth justice court in respect of a young person, the court may, if in its opinion the presence of the parent is necessary or in the best interests of the young person, by order in writing require the parent to attend at any stage of the proceedings. 14 Pre-Trial Detention YCJA s. 28 A general presumption that detention is a highly intrusive measure that should be used with restraint and only if it is the least restrictive alternative. Police must release unless detention is specifically necessary under the provisions of the Criminal Code It must be presumed that detention is not necessary for “public safety” if the young person could not be sentenced to custody if convicted 15 Sentencing Principles YCJA s. 38 The sentence must: not result in a punishment more significant than that which would be appropriate for an adult, be similar to that which would be imposed in other regions, and, be proportionate to the seriousness of the offence and the degree of responsibility of the youth in the offence. 16 Sentencing Principles YCJA s. 38 What factors must the judge take into account when determining a sentence? The judge must consider the: • degree of participation of the youth, • the harm done to victims, • reparations that have been made to the victims, • pre-sentence Custody, • previous findings of guilt of the youth, and • aggravating and mitigating circumstances. 17 Sentencing Principles YCJA s. 38 A judge may want additional information, which may be obtained from a variety of sources: • • • • • • The presence or absence of a criminal record The lifestyle of the offender Attitude, history and circumstances of the offender The impact on the victim The gravity of the offence The circumstances concerning the commission of the offence 18 YCJA types of sentences • Absolute Discharge: no conviction registered • Conditional Discharge: no conviction if conditions followed • Judicial Reprimand: stern lecture from the judge • Monetary Fine: Judge can award a fine up to $1,000 considering ability to pay • Restitution: youth took something, value has to be returned to the victim 19 YCJA types of sentences • Compensation: Youth ordered to pay victim bills, cost to replace etc. • Community Service: up to 240 hours to pay back a crime • Probation: abide by conditions for some time • Intensive Support and Supervision Program (ISSP): closer monitoring • Intermittent Custody: no more than 90 days intermittently, i.e. weekends 20 YCJA types of sentences Deferred Custody and Supervision Order: Serve sentence in the community under strict conditions Intensive Rehabilitation Custody and Supervision (IRCS): unique and rare circumstances for court-ordered treatment only if: • The youth has been found guilty of one of the presumptive offences (e.g. murder) • The youth is suffering from a mental or psychological disorder or an emotional disturbance • An individualized treatment plan has been developed for the youth, and there is an appropriate program available to which the youth is suitable for admission 21 Adult Sentences for Youth YCJA s. 64(1) If the youth is found guilty of an offence for which an adult would receive more than two years imprisonment, and was committed after the youth turned 14 years of age 22 Adult Sentences for Youth YCJA s. 67 Whether an adult sentence is appropriate depends on the type of offence. An adult sentence could be given if the youth has been found guilty of one of the serious violent offences such as: • • • • First or Second Degree Murder Attempt to commit murder Manslaughter Aggravated sexual assault • 23 Adult Sentences for Youth YCJA s. 72(1) An adult sentence shall be imposed if: The presumption of diminished moral blameworthiness/culpability of the young person is rebutted AND Youth sentence would not be sufficient to hold the young person accountable for their behaviour 24 Adult Sentences for Youth YCJA s. 72(1) Melissa Todorovic and David Bagshaw Both young persons convicted of 2nd degree and 1st degree murder respectively and sentenced as adults. http://www..org/ee/index.php/tjmk/comments/mtruejusticeelissa_todor ovic_perpetrates 25 Publication of a youth’s name Basic Rule: The basic rule is that there will be no publication of the youth's identity, as that identity should be protected and to make rehabilitation back into the community easier 26 Publication of a youth’s name Exceptions – YCJA s. 110(4) Order to I.D. Youth- Exparte Application for leave to publish S. 110 (4) A youth justice court judge shall, on the exparte application of a peace officer, make an order permitting any person to publish information that identifies a young person as having committed or allegedly committed an indictable offence, if the judge is satisfied that: • there is reason to believe that the young person is a danger to others; and • publication of the information is necessary to assist in apprehending the young person. 27 Publication of a youth’s name Exceptions – YCJA s. 110(4) Order to I.D. Youth- Exparte Application for leave to publish Order ceases to have effect (5) An order made under subsection (4) ceases to have effect five days after it is 28 Access to Youth Records Exceptions – YCJA s. 119(1)(4) Increase in person(s) and groups that can have access to records • Very detailed on the access period for the records kept by the Court and Police • An attempt to strike a fair balance between the rights of the youth and the need for the sharing of information. Prohibition orders not include 29 Disclosure of Information in a record Exceptions – YCJA s. 125(6) Notification for school officials is allowed if disclosure is necessary: To ensure compliance by the young person on an authorization to attend school To ensure the safety of staff, students or other persons To facilitate the rehabilitation of the young person 30 Hamilton Police Service – Case Study Ex Parte Leave to Publish application granted Hamilton police looking for girl accused of murder The special authorization was given "as there is reason to believe she is dangerous to herself and others, and publication of the information is necessary to assist the police in apprehending her," police said in a statement released on Wednesday. 31 YCJA – example #1 Police were authorized by a judge to release the identity of the girl — and a photo of her — for a short period of time only, despite the Youth Criminal Justice Act that prohibits the publication of information that would identify a young person’s involvement in the criminal justice system. The special authorization was given “as there is reason to believe she is dangerous to herself and others, and publication of the information is necessary to assist the police in apprehending her,” police said in a statement released Wednesday. The authorization to release the girl’s identity has since been lifted, as efforts to locate her were successful. 32 Hamilton Police Service – Case Study Ex Parte Leave to Publish application granted Screen captured June 1, 2018 at 11:05 www.huffingtonpost.co m 33 Homework Federal Law Workbook: YCJA 34