Young offenders lawyer
Frequently Asked Questions
Young offenders are given special consideration under Canadian law. It is recognized that the criminal justice system must deal with these people differently because of their age and lack of maturity. This different approach prioritizes having youths accept responsibility for their actions and helping them to rehabilitate.
The Guelph Police Service supports this principle. According to their 2022 Annual Report, the GPS recently introduced a Pre-Charge Diversion Program. The program aims to use and strengthen relationships with community organizations to address minor criminal offences, thereby avoiding the formal criminal process. This program is intended to give people more direct access to programs that will improve their lives.
Who Can See a Youth Record in Waterloo?
A youth record is any physical or digital document that contains information about a young offender, and/or the offence they have been convicted of. This includes any information that is provided to the court to assist with the sentencing process. The youth record of a young offender in Guelph cannot be accessed by the public. Under the law, it is only accessible to the offender, their family, and their lawyer. The record is also accessible to anyone involved in the prosecution of the case, such as a youth court judge or committee, the police, the Crown, or any victims of the offence. A judge can also grant access to the youth record to anyone they deem necessary.
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How Long Will a Conviction Stay on a Youth Record?
Each offence a young offender commits will be entered on their youth record. The details of each offence will remain on the youth record for a specific amount of time depending on how each case is resolved. This period of time is known as an access period. After an access period has expired, the youth record will either be sealed or destroyed.
The duration of an access period can have many different lengths. If an accused youth is found not guilty of an offence, or the Crown withdraws the charges against them, the access period will be set at two months. The same period applies if a youth is found guilty and only given a reprimand. If the case is resolved by way of extrajudicial measure, the period is two years. The access period is one year for an absolute discharge and three for a conditional discharge. Finally, if a youth is convicted of a summary or indictable offence, the access period is set at three or five years respectively after the completion of the sentence. If the youth is found guilty of certain violent offences, or sentenced as an adult, the youth record may become permanent. If the youth record becomes permanent, the offender may be eligible to seek a record suspension or pardon.
How Criminal Charges can be Resolved in Canada
Can Employers Ask About a Youth Record?
Most employers will not have access to a youth offender’s record. According to the Department of Justice Canada, the record can only be accessed by employers conducting a criminal record check for a government job. The access is granted for anyone connected with the three levels of government: federal, provincial, or municipal. Other employers may ask a person to complete a criminal record check. This check would not reveal the details of the youth record but would indicate that a young person does have a criminal record. Any person can decline to complete a criminal record check, but that decision may prevent them from successfully gaining employment.
Can Adults Go to Youth Court in Guelph?
Adults can go to youth courts in one of two ways. First, as with all court processes in the Canadian justice system, youth courts are open to the public. This allows for anyone to go to a designated youth courtroom in their community to observe a case. It is important to know that the YCJA has strong procedures in place to protect the right to privacy of all parties involved in a case. These procedures ensure that details about a case, offender, or victim are not published by the media.
An adult may also have to attend a youth court if they have been accused of a crime they allegedly committed before they were 18 years old. Most criminal offences in Canada do not have a statute of limitations that prevent an offender from facing criminal liability for an offence committed years in the past. If an adult is charged with a historical youth offence, they will be charged under the version of the Criminal Code that existed at the time of the offence. This means that an adult can be charged and sent to youth court for an offence they committed when they were a youth.
What’s a Crime in Canada?
What are Extrajudicial Measures?
The Youth Criminal Justice Act establishes that youth crime is to be dealt with separately from adults. The fundamental belief of this system is that youth offenders should be held less morally responsible for their actions because of their age and lack of maturity and development. When it comes to sentencing, this means that youths are given sentences that represent significant consequences for their actions that are also the least restrictive possible. The YCJA prioritizes the rehabilitation of youths, which means prison sentences are uncommon. Instead, the legislation developed extrajudicial measures, which allow for a wider range of sentencing options and a more efficient sentencing process that does not require a formal court proceeding.
Section 4 of the YCJA governs the extrajudicial measure process. These measures are always the first option for resolving a youth criminal case and are considered appropriate unless the offender has a history of criminal behaviour or has committed a serious offence. Extrajudicial measures can range from unofficial and official warnings from the police to consequences known as extrajudicial sanctions.
Extrajudicial sanctions are applied when a youth offender accepts responsibility for criminal behaviour without pleading guilty. They must then consent to either enter a program that will see them either take part in specialized community programming designed to address the cause of the criminal behaviour, find a way to compensate the victim for the harm done, or they must complete community service.
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Recent Cases
R. v. Wheeler, 2023 ONSC 1687
This Ontario Superior Court of Justice case explores the issue of when the YCJA applies to a criminal matter. The accused in this case was charged with two counts of sexual assault that were alleged to have occurred in the early 90s when the accused was around the age of 18. Because this was a historical offence, it was difficult to pinpoint when exactly the assaults occurred. This gave rise to the issue of whether a youth court had the jurisdiction to hear this case. According to the law, a youth court has jurisdiction over any matter that may deal with an accused under the age of 18 unless it can be proven that the accused was older.
The issue was resolved by first requiring the accused to produce evidence showing they may have been a youth at the relevant time. In this case, the accused’s birthday fell after the alleged offence date. The next step is for the Crown to prove beyond a reasonable doubt that the accused was an adult when committing the alleged offence. The Crown failed to satisfy this burden and the youth court was given jurisdiction over the case. This did not mean the charges were dropped, only that the Crown had to decide whether to press new charges under the YCJA.
R. v. O.B., 2022 ONCJ 413
This Ontario Court of Justice case deals with the sentencing process for youth offenders and specifically, the availability of prison sentences. The youth in this case was convicted of multiple crimes and the Crown argued for a prison sentence connected to a drug possession for the purpose of trafficking charge. Section 39(1)(d) of the YCJA allows for custodial sentences to be imposed on youth offenders who commit serious offences that are non-violent. Offences, such as the trafficking of fentanyl, which was the situation in this case. The facts showed that the offender had been released on bail at the time of the offence and had attempted to dispose of evidence.
It was also determined that the offender had been trafficking for many years, but the defence argued that the behaviour as due to an unstable home life, severe mental health challenges, and a learning disability. The fact that the offender had begun his own rehabilitation was also highlighted. All these factors are among those typically considered during sentencing. However, there was an additional element that led to the final decision that a custodial sentence was inappropriate in this case.
The police had violated the offender’s rights by neglecting to inform him of his right to counsel. This gave rise to an interesting dynamic in the case. The justice system cannot effectively hold offenders responsible if it does not hold itself responsible. The violation of the offender’s rights warranted a remedy, which took the form of a lesser sentence. This is especially true because of the enhanced importance that is given to the protection of youth rights in the justice system. The offender was given two years of probation along with a small fine and some other conditions.
R. v. J.L., 2020 ONCJ 29
This Ontario Court of Justice case is an example of when a prison sentence will be given to a young offender. Here, the offender was the driver involved in a car crash that killed one of his friends and injured others. The crash led to a conviction on one count of criminal negligence causing death and several counts of criminal negligence causing bodily harm. This was a violent offence which opened what is known as the gateway to custody under the YCJA.
Even when sentenced to prison, a youth sentence will always be for a shorter term than adult offenders. This reflects the principle of youth offenders’ reduced moral blameworthiness. Here, the maximum possible sentence was three years imprisonment. On top of these principles, a judge must also review the circumstances of the offence and the offender when before issuing a punishment that is the least restrictive yet appropriate measure. In this case that measure took the form of an 18-month sentence with a DNA order and five-year weapons ban. The sentence was only the physical consequence of the offender’s action. The offender also had to contend with the lifelong guilt that came from knowing the harm caused by his willful decisions made behind the wheel.
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About the Author
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.