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Youth Criminal Lawyers

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Frequently Asked Questions

The goal of youth criminal justice is not necessarily to charge youth with crime, but to hold them accountable, rehabilitate, and reintegrate young offenders into society. This means that extrajudicial measures, that is, measures outside of the justice system, can be used, including in Newmarket. The York Regional Police reported that in 2022 there were 490 young persons charged with an offence. In the same year, 895 were processed by other means. In 2021, the number of young persons charged was 316, and the number of youths processed by other means is 639.

If a Young Person Turns 18 While in Custody, What Happens?

While the youth is still under 18, they cannot be placed in a prison for adults. When the young person turns 18 while in custody, they will be transferred into a provincial correctional facility. The charges will remain a youth charge, and the sentence will remain the same, but a portion of the sentence must be physically served in an adult facility. This is because no young person can be held with adults in a penitentiary.

If the young person is convicted of a serious crime, such as murder, they may serve the sentence for years. During that time, they can age out of the juvenile prison system and be transferred into the adult penitentiary. Section 92(2) of the Youth Criminal Justice Act will direct the young person to serve the remainder of a youth sentence in a penitentiary if (a) the youth justice court considers it to be in the young person’s best interest or in the public’s best interest; (b) if it is requested by the provincial director; (c) if the remainder of the sentence is two years or more; and (d) if everyone involved has an opportunity to be heard by the court.

What is a Psychological Assessment for Youth?

Section 34(1) of the Youth Criminal Justice Act enumerates the proceedings where a psychological assessment or a medical assessment can be ordered. Normally, these assessments are ordered on consent of the young person and the prosecutor. However, if an application is made, the Court may accept the application on numerous grounds. Once the application is granted, the young person must undergo an assessment.

The Court may accept the application if they have reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability, or a mental disability. If the young person has a history of repeated offences, an assessment may be ordered. And finally, if the young person is accused of a serious violent offence, an assessment may be ordered.

What is a Referral to a Child Welfare Agency?

Section 35 the Youth Criminal Justice Act enumerates that the youth court may make a referral to a child welfare agency at any point in a youth proceeding. The purpose of the assessment is to determine whether the young person needs child welfare services.  A referral to a child welfare agency is a referral to the Children’s Aid Society in Canada.

When a CAS worker receives a referral, this means that a child may be in need of protection. The child protection worker will engage in conversation with the reporter to obtain information. This information may include identities of any and all adults involved, the detailed report of the incident or condition that causes concern, information about the functioning of the family, information about support networks, concerns about the workers’ safety, the current location of the child, etc. The safety of the child is paramount in these cases, and prompt responses are usually warranted. If a child is known to be neglected or abused, it is important to report it to the police.

Stages of the Criminal Justice System

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What Are Some Aggravating and Mitigating Factors for Youth Offenders in Newmarket?

Section 38(3)(f) of the Youth Criminal Justice Act declares that aggravating and mitigating factors must be considered during sentencing. These factors can help decide the length of the sentence. The aggravating factors and mitigating circumstances are the same as those enumerated in the Criminal Code under section 718.2. Aggravating factors may include: a motivation of hate, a domestic situation, the impact on the victim, the identity of the victim (whether they were a health service worker or not), any connection with a criminal organization, or breaching of a release order.

The young age of an offender is always a mitigating factor, as young persons with little criminal history have a great prospect of rehabilitation. The expression of guilt and remorse, as well as a guilty plea, can be a mitigating factor as well. The Court will also consider the offender’s family life when deciding on whether to impose a sentence or not. The pre-sentence report as well as a psychological/medical assessment may be a factor as well that might have mitigating effects on the sentence.

What’s a Crime in Canada?

What Are Some Sentencing Factors?

Section 38(1) of the Youth Criminal Justice Act enumerates the primary principle of sentencing as holding the young person accountable through meaningful consequences, promoting rehabilitation and reintegration into the community. Section 38(2) lists a few principles that the Court must consider during sentencing. The sentence must not be greater than the punishment for an adult for the same crime. The sentence must be similar to the sentences imposed on similar young persons found guilty of the same offence in the same region. The sentence must be proportionate to the seriousness of the offence. All sanctions are available for young persons, but special consideration must be taken for the circumstances of Indigenous young persons. The sentence must be the least restrictive sentence, emphasizing the principles of rehabilitation and promoting a sense of responsibility.

Section 38(3) lists out factors that must be considered during sentencing. When determining a youth sentence, the Court will often consider: the degree of participation of the young person in committing the offence, the harm done to victims (whether intentional or foreseeable), any reparations made, the time spent in detention, any history of findings of guilt of the young person, and any other aggravating and mitigating circumstances. These factors, in conjunction with the sentencing principles, help to determine a fit and appropriate sentence for the young offender.

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Recent Cases

R. v. M.M., 2021 ONSC 8095

In the Ontario Superior Court of Justice case of R. v. M.M., the accused pled guilty to second degree murder. He killed his mother by beating her with a sledgehammer. He had withdrawn money from his account and was located in Winnipeg by the police when they discovered the decomposed body. Evidence showed that a person named Viktoria that his father met online had dissolved the marriage between his parents and manipulated the family members. The accused was manipulated to turn against his mother by Viktoria.

The accused was given a medical and psychological assessment, and the doctor reported him to have intellectual limitations, social difficulties, anxiety, mood problems, and paranoia. The offender also has a very supportive extended family, having taken steps to support him upon his release. For the offender’s rehabilitation, it was deemed that a youth Intense Rehabilitative Custody and Supervision (IRCS) sentence of seven years is suitable, with credit given for the one year served in pre-sentence custody. A DNA order and a weapons prohibition order was entered for life.

R. v. N.M., 2021 ONCJ 617 

In the Ontario Court of Justice case of R. v. N.M., the accused pled guilty to second degree murder. The young person was the foster son of the victim. After an argument, the accused struck the victim once in the head with an aluminum baseball bat. The accused had had a tense relationship with his foster father and felt that the foster father was treating his foster mother badly.

Two pre-sentence reports and a psychological report was provided to the Court. The offender had a tumultuous childhood and faced racism as a biracial black youth. Child protection agencies have been involved in his life, there were four investigations for child exposure to domestic conflict, poor school attendance and poor living conditions. The accused expressed feelings of alienation and discomfort in the foster home. The accused expressed genuine remorse. The Crown recommended an adult sentence, while the defence submits that the accused should be sentenced as a young person. The Crown did not meet the satisfactory requirements to rebut the presumption of diminished moral blameworthiness or culpability of youth. The offender was sentenced to a youth sentence of seven years of custody and supervision.

R. v. K.S., 2021 ONCJ 397

In the Ontario Court of Justice case of R. v. K.S., the accused was found guilty of assault, aggravated assault, assault with a weapon, and assisting someone for the purpose of enabling him to escape. She was acquitted of the charge of second-degree murder. Eight victim impact statements were filed from the family of the deceased. The accused was involved with a serious incident with a knife. The accused had hidden the knife used in the murder to help the perpetrator of the crime escape detection.

The offender was deemed to be largely successful at school, with an individual education plan. She has suffered depression, been diagnosed with ADHD, and used marijuana. The long-term protection of the public was deemed to be paramount. Section 34 of the YCJA allows for assessment and risk-management. The offender was deemed to be at low risk to reoffend. The accused has not reoffended since her release and had a stable and healing time with her parents, in addition to gaining employment. It was in the Court’s opinion that re-incarceration would interrupt a positive trajectory of rehabilitation. The accused was sentenced to 3 years probation.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.