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Frequently Asked Questions

Who Can Access Youth Records?

Section 119(1) of the Youth Criminal Justice Act lists specific people that can access the records of youth offenders during the period of time in which that record is open, known as the period of access. They are: the young person in question, the counsel for the defence, the Attorney General, the victim of the offence, the parents of the young person, any adult assisting the young person (as per right to counsel, subsection 25(7)), any peace officer for law enforcement or administrative purposes, a judge or court or review board, the provincial director, anyone participating in extrajudicial measures, anyone with a particular interest in the case that is deemed necessary by the judge or Governor in Council.

In addition, this includes anyone who may be given disclosure under certain provisions as per section 122 of the Youth Criminal Justice Act. Any other member of the public will not have access to an individual’s youth record.

What is the Period of Access?

The period of access is the length of time a youth record is available for persons enumerated under section 119(1) to access and view. Youth records are drastically different from adult records. Due to a young person’s presumed diminished moral blameworthiness, it is not in the Court’s interest to impose criminal records that may affect a youth’s entire future.

If the young offender is dealt with via an extrajudicial measure or sanction, the police will also keep a record that can be available for access. The period of access may last from two months to five years, depending on the circumstances of the youth. For example, the record will be sealed two months after an acquittal. However, if a person is convicted and sentenced, the record will be sealed five years after the end of the sentence.

Can the Court Order a Young Person to Provide a DNA Sample?

Yes, the Court can order a young person to give a DNA sample. The Court may not need to make this order if the interests of the young person’s privacy supersede that of the public interest. However, if the young person commits a crime that is a primary designated offence, the Court may order a DNA sample when the person is either sentenced or discharged.

A DNA sample is important for the protection of society and the proper administration of justice through the early detection, arrest, and conviction of offenders. They are used to deter potential repeat offenders, promote the safety of the community, detect when a serial offender is at work, assist in solving cold crimes, streamline investigations, and exonerate those who have been wrongfully accused. Primary designated offences make sexual and violent offences subject to a mandatory DNA order. Such offences include: sexual interference, sexual exploitation, assault causing bodily harm, manslaughter, murder, and many more.

Stages of the Criminal Justice System

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What Happens if I am Arrested as a Youth?

An arrest means the police has taken physical control of the offender. The process of arrest for youth is similar to arrest as an adult. The physical process is the same, the police would detain the offender by putting them in handcuffs and arrest them. They would then, in some cases, be driven to the station. Under section 26 of the Youth Criminal Justice Act, a young person has the right to have their parents notified of their arrest. The police must give a notice of the arrest to the young person’s parent, relative, or other adult. A parent, relative, or other adult may join the young person to go to the station with them.

According to subsection 26(11) of the YCJA, if the young person’s parent or guardian is not notified by the police, orally or in writing, of the arrest, the judge may either adjourn the proceedings or dispense with the notice. If the young person committed an offence but at the time of the first appearance is 20 years old or above 20 years old, they do not need a notice given to the parent.

Consequences of a Criminal Record

Should I Get a Lawyer if I am Charged with a Youth Offence?

It is always advisable to get a lawyer in any criminal situation, even if the offence is a youth offence. A criminal record can have debilitating effects on a person’s future, stigmatizing them and affecting their employment opportunities. Even if the youth record is sealed, there are opportunities where people may be able to access the record. In addition, probation orders and ancillary orders, such as a weapons prohibition order, may impact the offender’s life.

A lawyer is the best defence possible against a charge. If a person is arrested and held for bail, a lawyer may come up with a bail plan and advocate for the accused’s rights and freedoms to have less onerous conditions for bail. If the charge is particularly serious, the prosecution may want to subject the young offender to an adult sentence, and a youth lawyer can advocate for the young offender’s rehabilitation plan.

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Recent Cases

R. v. H.M., 2019 ONCJ 790

In the Ontario Superior Court of Justice case of R. v. H.M., the accused was convicted of four drug and weapons offences. The applicant had submitted section 8 and section 9 Charter challenges and succeeded, but evidence was admitted into the Court anyway. The accused had a loaded firearm in his pants, had no explanation or reason for such possession, and threatened widely shared community values. The accused was 16 years old at the time of the offence, and he had a challenging early life in an African country with civil unrest. Transitions, the lack of stability, weak English skills and cognitive deficits made him vulnerable to antisocial influences.

The Court considered several mitigating factors. The accused had no prior record, did not use the firearm, and accepted responsibility for his actions. The accused had already started a rehabilitation and reintegration program with the goal of becoming a mechanic. Taking account into the accused presumption of diminished moral blameworthiness and his youthful age, the offender was sentenced to deferred custody and supervision with terms and conditions.

R. v. M.A.-O., 2019 ONCJ 740 

In the Ontario Court of Justice case of R. v. M.A.-O., the accused young offender pleaded guilty to robbery with a firearm. The incident arises from a robbery at a marijuana dispensary, and the accused was involved in reconnaissance of the location. During the altercation, the complainant was wounded in the leg, but the complainant did not file a victim impact statement. The offender received extra judicial sanctions for robbery in 2018, and successfully completed the sanctions during detention at Cuthbert House. A pre-sentence report was ordered.

The pre-sentence report described a close-knit family, with two loving parents and a close relationship with an older brother. The reasons for the offence are suspected to be from the influence of anti-social peers. The accused has also expressed empathy and concern about the victim of the robbery and wishes to apologize. He also wishes to avoid negative influences and risky situations. The Court found that any further period of custody would be unnecessary and inappropriate. The accused’s 171 days in detention was counted as 8.5 months in custody. A probation period of two years was ordered.

R. v. R.D., 2019 ONSC 4468

In the Ontario Superior Court of Justice case of R. v. R.D., the accused pleaded guilty to 10 counts on an indictment. Three jewellery stores were robbed, and a fourth robbery was attempted. These incidents took place during a two-week period of March of 2017. At the time of the offence, the offender was 16 years old. The Crown has submitted that an adult sentence would be appropriate for the offender. The presumption of diminished moral blameworthiness or culpability has, in the Crown’s view, been rebutted. The defence submits that a youth sentence of three years would suffice.

The pre-sentence report details distant parents, lack of stability and structure, foster care, as well as a general lack of guidance. The accused grew up in poverty. As an American citizen, he also did not have a health card or a Social Insurance Number, believing that he was unable to gain lawful employment. The motivation of these offences was financial. Members of a street gang were involved, though the accused denied any membership. The accused wishes to pursue post-secondary education in auto mechanics. The accused did not have a youth record, was on bail at the time of the commission of the offence and has excellent prospects for rehabilitation. Taking care not to diminish the weight of the accused’s participation in the offences, the Court noted that this was a very serious crime, and that the accused’s participation was neither secondary nor circumstantial. The accused was sentenced to a youth sentence of seven years.

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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.