In Canada, those who commit criminal offences while under the age of 18 are prosecuted as youths. Youth offenders are sentenced under a completely different regime than adult offender’s in Canada. The Youth Criminal Justice Act is a piece of legislation that outlines the processed and procedures for prosecuting and sentencing youth. Youth offenders are kept separate from adult offenders and are prosecuted in a separate youth court.
Sentencing and the Youth Criminal Justice Act
The Youth Criminal Justice Act protects the identities of youthful offenders by keeping their private information private. This is not the case with adult offenders, who may be identified publicly. Under the YCJA, the publication of any identifying characteristics of a young offender is strictly prohibited throughout the prosecution. Where a young person is convicted of a serious violent offence, the sentencing court will make the decision regarding whether or not to lift the publication ban and allow the young person to be identified.
The primary goals of the YCJA are to prevent crime by addressing the underlying issues that lead to criminality in young people, rehabilitating young people who do come in contact with the criminal justice system, and ensuring that young people who commit offences are subject to meaningful consequences for their actions.
Sentences available for Young Offenders
As outlined in section 42 of the Youth Criminal Justice Act, a court sentencing a young person may impose any of the following sentences:
- A reprimand
- An absolute discharge
- A conditional discharge
- A fine
- A restitution order
- Community service
- An order to compensate another person by personal service
- A probation order
- A requirement to participate in an intensive support and supervision program (ISSP)
- An attendance order for a non-residential program
- A custody and community supervision order
- A custody and conditional supervision order
- A deferred custody and conditional supervision order
- An intensive rehabilitative custody and supervision sentence (IRCS)
Can Youthful Offenders be Sentenced to Jail?
When sentencing a young offender, the sentencing court must impose the least restrictive sentence appropriate in the circumstances. The YCJA was originally introduced to reduce the youth prison population in Canada. Under the new regime, there are very few situations in which a young offender would be sentenced to a period of incarceration.
A young offender can be sentenced to a maximum single sentence of two years in prison. They may receive three years in prison where the adult sentence for the same offence would be life imprisonment. Where the young person is being sentenced for first degree murder, they may be sentenced to serve a maximum of six years in prison. Where the young person is being sentenced for second degree murder, they may be sentenced to serve a maximum of four years in prison.
Before a sentencing court can send a young offender to prison, they must be satisfied that one of the gateways to custody has been satisfied.
Section 39(1) of the YCJA stipulates that the court cannot impose a period of imprisonment on a youth offender unless one of the following conditions are met:
- The young offender has been found guilty of a violent crime.
- The young offender has failed to comply with the conditions of their previous non-custodial release.
- The young offender has been found guilty of an offence for which an adult offender could be sentenced to more than two years imprisonment, and the young offender has a history that indicates a “pattern of either extrajudicial sanctions or of findings of guilty or both under the YCJA or the Youth Offenders Act”.
- In exceptional cases where aggravating circumstances have rendered non-custodial sentences inappropriate and inconsistent with the principles of youth sentencing.
This means that young offenders are only sentenced to imprisonment in the most serious of cases or where other sentencing options have proven ineffective or inappropriate.
Can Employers ask about my Youth Record?
No. In Canada employers are not legally permitted to ask a potential new hire or a current employee about their youth criminal record. That being said, employers are permitted to request a criminal background check.
A criminal background check will show a youth conviction or discharge as long as the youth record is still active. After an individual is convicted or discharged of an offence, their youth record will remain active during the “access period”.
Are Youth Records Permanent?
The majority of youth records will be “sealed” after a certain period of time. The period of time in which the record is open is referred to as the “access period”. The access period differs from offender to offender based on the charges against them and the outcome of their case.
Where a young person is acquitted, their charge is withdrawn or dismissed or they are found guilty and given a reprimand, the access period to their youth record is two months from the date the proceedings completed.
Where a young offender is found guilty and given an absolute discharge, or where the charge against the young offender is stayed, the access period ends one year from the date the proceedings completed.
Where an extrajudicial sanction was imposed, the access period will end two years after the young offender consented to the extrajudicial sanction.
Where a young offender is granted a conditional discharge the access period will end three years after the date of sentencing.
Where a young offender is found guilty and sentenced for a summary conviction offence the access period will end three years after the completion of their sentence.
Where a young offender is found guilty and sentenced for an indictable offence, the access period will end five years after the completion of their sentence.
Where a young offender is found guilty of murder, attempted murder, manslaughter or aggravated sexual assault their record may be retained indefinitely.
Will my Youth Record show up on an Employment Background Check?
A youth record will appear on a background check until the access period has ended. This means if the access period for the record is three years from the sentencing date, the youth record will appear for those three years. After the access period has ended the file will be sealed and the record will no longer appear on an employment criminal background check.
Can Youthful Offenders be Sentenced as Adults?
Yes. In rare cases, young offenders convicted of certain offences may be sentenced as adults. The determination of whether a young offender will be sentenced as an adult will occur after the offender has already been found guilty of the offence.
To be sentenced as an adult, the young person must be over the age of 14 years old and must have been convicted of an indictable offence for which an adult would receive a sentence of more than two years in prison.
There is a presumption that a young person convicted of a criminal offence should be sentenced as a youth. In cases where the Crown is seeking an adult sentence the onus lies with them to demonstrate to the court why this is necessary and appropriate in the circumstances.