| 1992, c. 11,
s. 2(3)
|
10. The portion of subsection 16.2(1) of
the Act before paragraph (a) is replaced by
the following:
|
|
| Placement on
conviction by
ordinary court
|
16.2 (1) Notwithstanding anything in this or
any other Act of Parliament, where a young
person who is proceeded against in ordinary
court by reason of subsection 16(1.01), where
no application is made under that subsection,
or by reason of an order under subparagraph
16(1.1)(b)(i) or the refusal under
subparagraph 16(1.1)(b)(ii) to make an order,
is convicted and sentenced to imprisonment,
the court shall, after affording the young
person, the parents of the young person, the
Attorney General, the provincial director and
representatives of the provincial and federal
correctional systems an opportunity to be
heard, order that the young person serve any
portion of the imprisonment in
|
|
|
|
11. The portion of subsection 17(1) of the
Act before paragraph (a) is replaced by the
following:
|
|
| Order
restricting
publication of
information
presented at
transfer
hearing
|
17. (1) Where a youth court hears an
application for a transfer under section 16, it
shall
|
|
| R.S., c. 24
(2nd Supp.),
s. 13
|
12. (1) Subsection 19(2) of the Act is
replaced by the following:
|
|
| Where young
person pleads
not guilty
|
(2) Where a young person charged with an
offence pleads not guilty to the offence or
pleads guilty but the youth court is not
satisfied that the facts support the charge, the
court shall, subject to subsection (4), proceed
with the trial and shall, after considering the
matter, find the young person guilty or not
guilty or make an order dismissing the charge,
as the case may be.
|
|
|
|
(2) Section 19 of the Act is amended by
adding the following after subsection (3):
|
|
| Election -
offence of
murder
|
(4) Notwithstanding section 5, where a
young person is charged with having
committed first degree murder or second
degree murder within the meaning of section
231 of the Criminal Code, the youth court,
before proceeding with the trial, shall ask the
young person to elect to be tried by a youth
court judge alone or by a judge of a superior
court of criminal jurisdiction with a jury, and
where a young person elects to be tried by a
judge of a superior court of criminal
jurisdiction with a jury, the young person shall
be dealt with as provided in this Act.
|
|
| Where no
election made
|
(5) Notwithstanding section 5, where an
election is not made under subsection (4), the
young person shall be deemed to have elected
to be tried by a judge of a superior court of
criminal jurisdiction with a jury and dealt with
as provided for in this Act.
|
|
| Preliminary
inquiry
|
(5.1) Where a young person elects or is
deemed to have elected to be tried by a judge
of a superior court of criminal jurisdiction
with a jury, the youth court shall conduct a
preliminary inquiry and if, on its conclusion,
the young person is ordered to stand trial, the
proceedings shall be before a judge of the
superior court of criminal jurisdiction with a
jury.
|
|
| Preliminary
inquiry
provisions of
Criminal
Code
|
(5.2) A preliminary inquiry referred to in
subsection (5.1) shall be conducted in
accordance with the provisions of Part XVIII
of the Criminal Code, except to the extent that
they are inconsistent with this Act.
|
|
| Parts XIX and
XX of the
Criminal
Code
|
(6) Proceedings under this Act before a
judge of a superior court of criminal
jurisdiction with a jury shall be conducted,
with such modifications as the circumstances
require, in accordance with the provisions of
Parts XIX and XX of the Criminal Code,
except that
|
|
|
|
(a) the provisions of this Act respecting the
protection of privacy of young persons
prevail over the provisions of the Criminal
Code; and
|
|
|
|
(b) the young person is entitled to be
represented in court by counsel if the young
person is removed from court pursuant to
subsection 650(2) of the Criminal Code.
|
|
|
|
13. (1) Subsection 20(1) of the Act is
amended by adding the following after
paragraph (a):
|
|
|
|
(a.1) by order direct that the young person
be discharged on such conditions as the
court considers appropriate;
|
|
|
|
(2) Paragraph 20(1)(i) of the Act is
repealed.
|
|
| 1992, c. 11,
s. 3(2)
|
(3) Paragraph 20(1)(k.1) of the Act is
replaced by the following:
|
|
|
|
(k.1) order the young person to serve a
disposition not to exceed
|
|
|
|
(i) in the case of first degree murder, ten
years comprised of
|
|
|
|
(A) a committal to custody, to be
served continuously, for a period that
shall not, subject to
subsection 26.1(1), exceed six years
from the date of committal, and
|
|
|
|
(B) a placement under conditional
supervision to be served in the
community in accordance with
section 26.2, and
|
|
|
|
(ii) in the case of second degree murder,
seven years comprised of
|
|
|
|
(A) a committal to custody, to be
served continuously, for a period that
shall not, subject to
subsection 26.1(1), exceed four years
from the date of committal, and
|
|
|
|
(B) a placement under conditional
supervision to be served in the
community in accordance with
section 26.2; and
|
|
| 1992, c. 11,
s. 3(3)
|
(4) Subsection 20(4) of the Act is replaced
by the following:
|
|
| Combined
duration of
dispositions
|
(4) Subject to subsection (4.1), where more
than one disposition is made under this section
in respect of a young person with respect to
different offences, the continuous combined
duration of those dispositions shall not exceed
three years, except where one of those
offences is first degree murder or second
degree murder within the meaning of section
231 of the Criminal Code, in which case the
continuous combined duration of those
dispositions shall not exceed ten years in the
case of first degree murder, or seven years in
the case of second degree murder.
|
|
| 1992, c. 11,
s. 3(4)
|
(5) Paragraph 20(4.1)(c) of the Act is
replaced by the following:
|
|
|
|
(c) the combined duration of all the
dispositions may exceed three years, except
where the offence is, or one of the previous
offences was,
|
|
|
|
(i) first degree murder within the
meaning of section 231 of the Criminal
Code, in which case the continuous
combined duration of the dispositions
may exceed ten years, or
|
|
|
|
(ii) second degree murder within the
meaning of section 231 of the Criminal
Code, in which case the continuous
combined duration of the dispositions
may exceed seven years.
|
|
| R.S., c. 27 (1st
Supp.), s. 187
(Sch. V,
item 7(1))
|
(6) Subsection 20(8) of the Act is replaced
by the following:
|
|
| Application of
Part XXIII of
Criminal
Code
|
(8) Part XXIII of the Criminal Code does
not apply in respect of proceedings under this
Act except for subsections 735(1.1) to (1.4),
736(2) and (4), and 738(4) and sections 749,
750 and 751, which provisions apply with
such modifications as the circumstances
require.
|
|
|
|
14. Section 22 of the Act is repealed.
|
|
|
|
15. (1) Section 24 of the Act is amended by
adding the following after subsection (1):
|
|
| Factors
|
(1.1) In making a determination under
subsection (1), the youth court shall take the
following into account:
|
|
|
|
(a) that an order of custody shall not be used
as a substitute for appropriate child
protection, health and other social
measures;
|
|
|
|
(b) that a young person who commits an
offence that does not involve serious
personal injury should be held accountable
to the victim and to society through
non-custodial dispositions whenever
appropriate; and
|
|
|
|
(c) that custody shall only be imposed when
all available alternatives to custody that are
reasonable in the circumstances have been
considered.
|
|
|
|
(2) Section 24 of the Act is amended by
adding the following after subsection (3):
|
|
| Reasons
|
(4) Where the youth court makes a
disposition in respect of a young person under
paragraph 20(1)(k), the youth court shall state
the reasons why any other disposition or
dispositions under subsection 20(1), without
the disposition under paragraph 20(1)(k),
would not have been adequate.
|
|
| R.S., c. 24
(2nd Supp.), s.
17; 1992, c.
11, s. 4
|
16. Subsections 24.1(2) to (4) of the Act
are replaced by the following:
|
|
| Youth court to
specify type
of custody
|
(2) Subject to subsection (3), where the
youth court commits a young person to
custody under paragraph 20(1)(k) or (k.1) or
makes an order under subsection 26.1(1) or
paragraph 26.6(2)(b), it shall specify in the
order whether the custody is to be open
custody or secure custody.
|
|
| Provincial
director to
specify level
of custody
|
(3) In a province in which the Lieutenant
Governor in Council has designated the
provincial director to determine the level of
custody, the provincial director shall, where a
young person is committed to custody under
paragraph 20(1)(k) or (k.1) or an order is made
under subsection 26.1(1) or
paragraph 26.6(2)(b), specify whether the
young person shall be placed in open custody
or secure custody.
|
|
| Factors
|
(4) In deciding whether a young person
shall be placed in open custody or secure
custody, the youth court or the provincial
director shall take into account the following
factors:
|
|
|
|
(a) that a young person should be placed in
a level of custody involving the least degree
of containment and restraint, having regard
to
|
|
|
|
(i) the seriousness of the offence in
respect of which the young person was
committed to custody and the
circumstances in which that offence was
committed,
|
|
|
|
(ii) the needs and circumstances of the
young person, including proximity to
family, school, employment and support
services,
|
|
|
|
(iii) the safety of other young persons in
custody, and
|
|
|
|
(iv) the interests of society;
|
|
|
|
(b) that the level of custody should allow for
the best possible match of programs to the
young person's needs and behaviour,
having regard to the findings of any
assessment in respect of the young person;
|
|
|
|
(c) the likelihood of escape if the young
person is placed in open custody; and
|
|
|
|
(d) the recommendations, if any, of the
youth court or the provincial director, as the
case may be.
|
|
| R.S., c. 24
(2nd Supp.),
s. 17
|
17. (1) Subsection 24.2(1) of the Act is
replaced by the following:
|
|
| Place of
custody
|
24.2 (1) Subject to this section and
sections 24.3 and 24.5, a young person who is
committed to custody shall be placed in open
custody or secure custody, as specified
pursuant to subsection 24.1(2) or (3), at such
place or facility as the provincial director may
specify.
|
|
| R.S., c. 24
(2nd Supp.),
s. 17
|
(2) Subsections 24.2(7) and (8) of the Act
are replaced by the following:
|
|
| Transfer to
open
custody -
youth court
|
(7) No young person who is committed to
secure custody pursuant to subsection 24.1(2)
may be transferred to a place or facility of
open custody except in accordance with
sections 28 to 31.
|
|
| No transfer to
secure
custody -
youth court
|
(8) Subject to subsection (9), no young
person who is committed to open custody
pursuant to subsection 24.1(2) may be
transferred to a place or facility of secure
custody.
|
|
| R.S., c. 24
(2nd Supp.),
s. 17
|
(3) The portion of subsection 24.2(9) of
the Act before paragraph (a) is replaced by
the following:
|
|
| Exception -
transfer to
secure
custody -
youth court
|
(9) Where a young person is placed in open
custody pursuant to subsection 24.1(2), the
provincial director may transfer the young
person from a place or facility of open custody
to a place or facility of secure custody for a
period not exceeding fifteen days if
|
|
|
|
(4) Section 24.2 of the Act is amended by
adding the following after subsection (9):
|
|
| Transfer to
open
custody -
provincial
director
|
(10) The provincial director may transfer a
young person from a place or facility of secure
custody to a place or facility of open custody
when the provincial director is satisfied that
the needs of the young person and the interests
of society would be better served thereby.
|
|
| Transfer to
secure
custody -
provincial
director
|
(11) The provincial director may transfer a
young person from a place or facility of open
custody to a place or facility of secure custody
when the provincial director is satisfied that
the needs of the young person and the interests
of society would be better served thereby
|
|
|
|
(a) having considered the factors set out in
subsection 24.1(4); and
|
|
|
|
(b) having determined that there has been a
material change in circumstances since the
young person was placed in open custody.
|
|
| Notice
|
(12) The provincial director shall cause a
notice in writing of the decision to transfer a
young person under subsection (11) to be
given to the young person and the young
person's parents and set out in that notice the
reasons for the transfer.
|
|
| Where
application
for review is
made
|
(13) Where an application for review under
section 28.1 of a transfer under subsection (11)
is made to a youth court,
|
|
|
|
(a) the provincial director shall cause such
notice as may be directed by rules of court
applicable to the youth court or, in the
absence of such direction, at least five clear
days notice of the review to be given in
writing to the young person and the young
person's parents; and
|
|
|
|
(b) the youth court shall forthwith, after the
notice required under paragraph (a) is
given, review the transfer.
|
|
| Interim
custody
|
(14) Where an application for review under
section 28.1 of a transfer under
subsection (11) is made to a youth court, the
young person shall remain in a place or facility
of secure custody until the review is heard by
the youth court unless the provincial director
directs otherwise.
|
|
| R.S., c. 24
(2nd Supp.),
s. 17
|
18. Section 24.3 of the Act is replaced by
the following:
|
|
| Consecutive
dispositions of
custody
|
24.3 (1) Where a young person is
committed to open custody and secure
custody pursuant to subsection 24.1(2) , any
portions of which dispositions are to be served
consecutively, the disposition of secure
custody shall be served first without regard to
the order in which the dispositions were
imposed.
|
|
| Concurrent
dispositions of
custody
|
(2) Where a young person is committed to
open custody and secure custody pursuant to
subsection 24.1(2), any portions of which
dispositions are to be served concurrently, the
concurrent portions of the dispositions shall
be served in secure custody.
|
|
| R.S., c. 24
(2nd Supp.),
s. 18
|
19. Subsection 25(1) of the Act is replaced
by the following:
|
|
| Transfer of
disposition
|
25. (1) Where a disposition has been made
under paragraphs 20(1)(b) to (g) or paragraph
20(1)(j) or (l) in respect of a young person and
the young person or a parent with whom the
young person resides is or becomes a resident
of a territorial division outside the jurisdiction
of the youth court that made the disposition,
whether in the same or in another province, a
youth court judge in the territorial division in
which the disposition was made may, on the
application of the Attorney General or an
agent of the Attorney General or on the
application of the young person or the young
person's parent with the consent of the
Attorney General or an agent of the Attorney
General, transfer the disposition and such
portion of the record of the case as is
appropriate to a youth court in the other
territorial division, and all subsequent
proceedings relating to the case shall
thereafter be carried out and enforced by that
court.
|
|
| 1992, c. 11,
s. 6
|
20. Subsection 25.1(1) of the Act is
replaced by the following:
|
|
| Interprovincia
l
arrangements
for probation
or custody
|
25.1 (1) Where a disposition has been made
under paragraphs 20(1)(j) to (k.1) in respect of
a young person, the disposition in one
province may be dealt with in any other
province pursuant to any agreement that may
have been made between those provinces.
|
|
|
|
21. Section 27 of the Act is amended by
adding the following after subsection (1.1):
|
|
| Appeals
where
offences are
tried jointly
|
(1.2) An appeal involving one or more
indictable offences and one or more summary
conviction offences that are tried jointly or in
respect of which dispositions are jointly made
lies under this Act in accordance with
Part XXI of the Criminal Code, which applies
with such modifications as the circumstances
require.
|
|
|
|
22. (1) Subsection 28(3) of the Act is
replaced by the following:
|
|
| Optional
review of
disposition
involving
custody
|
(3) Where a young person is committed to
custody pursuant to a disposition made under
subsection 20(1) in respect of an offence, the
provincial director may, on the provincial
director's own initiative, and shall, on the
request of the young person, the young
person's parent or the Attorney General or an
agent of the Attorney General, on any of the
grounds set out in subsection (4), cause the
young person to be brought before a youth
court
|
|