| Report of
qualified
person in
writing
|
(5) For the purposes of paragraph (4)(a), if
the prosecutor and the young person agree,
evidence of a qualified person may be
received in the form of a report in writing.
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| Application to
vary
assessment
order if
circumstances
change
|
(6) A youth justice court may, at any time
while an order made under subsection (1) is in
force, on cause being shown, vary the terms
and conditions specified in the order in any
manner that the court considers appropriate in
the circumstances.
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| Disclosure of
report
|
(7) When a youth justice court receives a
report made in respect of a young person under
subsection (1),
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(a) the court shall, subject to subsection (9),
cause a copy of the report to be given to
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(ii) any parent of the young person who
is in attendance at the proceedings
against the young person,
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(iii) any counsel representing the young
person, and
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(b) the court may cause a copy of the report
to be given to a parent of the young person
who is not in attendance at the proceedings
if the parent is, in the opinion of the court,
taking an active interest in the proceedings.
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| Cross-examin
ation
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(8) When a report is made in respect of a
young person under subsection (1), the young
person, his or her counsel or the adult assisting
the young person under subsection 25(7) and
the prosecutor shall, subject to subsection (9),
on application to the youth justice court, be
given an opportunity to cross-examine the
person who made the report.
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| Non-disclosur
e in certain
cases
|
(9) A youth justice court shall withhold all
or part of a report made in respect of a young
person under subsection (1) from a private
prosecutor, if disclosure of the report or part,
in the opinion of the court, is not necessary for
the prosecution of the case and might be
prejudicial to the young person.
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| Non-disclosur
e in certain
cases
|
(10) A youth justice court shall withhold all
or part of a report made in respect of a young
person under subsection (1) from the young
person, the young person's parents or a private
prosecutor if the court is satisfied, on the basis
of the report or evidence given in the absence
of the young person, parents or private
prosecutor by the person who made the report,
that disclosure of the report or part would
seriously impair the treatment or recovery of
the young person, or would be likely to
endanger the life or safety of, or result in
serious psychological harm to, another
person.
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| Exception -
interests of
justice
|
(11) Despite subsection (10), the youth
justice court may release all or part of the
report to the young person, the young person's
parents or the private prosecutor if the court is
of the opinion that the interests of justice make
disclosure essential.
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| Report to be
part of record
|
(12) A report made under subsection (1)
forms part of the record of the case in respect
of which it was requested.
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| Disclosure by
qualified
person
|
(13) Despite any other provision of this Act,
a qualified person who is of the opinion that a
young person held in detention or committed
to custody is likely to endanger his or her own
life or safety or to endanger the life of, or cause
bodily harm to, another person may
immediately so advise any person who has the
care and custody of the young person whether
or not the same information is contained in a
report made under subsection (1).
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| Definition of
``qualified
person''
|
(14) In this section, ``qualified person''
means a person duly qualified by provincial
law to practice medicine or psychiatry or to
carry out psychological examinations or
assessments, as the circumstances require, or,
if no such law exists, a person who is, in the
opinion of the youth justice court, so qualified,
and includes a person or a member of a class
of persons designated by the lieutenant
governor in council of a province or his or her
delegate.
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| When young
person pleads
guilty
|
35. (1) If a young person pleads guilty to an
offence charged against the young person and
the youth justice court is satisfied that the facts
support the charge, the court shall find the
young person guilty of the offence.
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| When young
person pleads
not guilty
|
(2) If a young person charged with an
offence pleads not guilty to the offence or
pleads guilty but the youth justice court is not
satisfied that the facts support the charge, the
court shall 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.
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| Appeals
|
36. (1) An appeal in respect of an indictable
offence or an offence that the Attorney
General elects to proceed with as an indictable
offence lies under this Act in accordance with
Part XXI of the Criminal Code, which Part
applies with any modifications that the
circumstances require.
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| Appeals for
contempt of
court
|
(2) A finding of guilt under section 15 for
contempt of court or a sentence imposed in
respect of the finding may be appealed as if the
finding were a conviction or the sentence were
a sentence in a prosecution by indictment.
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| Appeal
|
(3) Section 10 of the Criminal Code applies
if a person is convicted of contempt of court
under subsection 27(4).
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| Appeals to be
heard together
|
(4) A judicial determination under
subsection 41(8), or an order under subsection
72(1), 75(3) or 76(1), may be appealed as part
of the sentence and, unless the court to which
the appeal is taken otherwise orders, if more
than one of these is appealed they must be part
of the same appeal proceeding.
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| Appeals for
summary
conviction
offences
|
(5) An appeal in respect of an offence
punishable on summary conviction or an
offence that the Attorney General elects to
proceed with as an offence punishable on
summary conviction lies under this Act in
accordance with Part XXVII of the Criminal
Code, which Part applies with any
modifications that the circumstances require.
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| Appeals
where
offences are
tried jointly
|
(6) An appeal in respect of one or more
indictable offences and one or more summary
conviction offences that are tried jointly or in
respect of which youth sentences are jointly
imposed lies under this Act in accordance with
Part XXI of the Criminal Code, which Part
applies with any modifications that the
circumstances require.
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| Deemed
election
|
(7) For the purpose of appeals under this
Act, if no election is made in respect of an
offence that may be prosecuted by indictment
or proceeded with by way of summary
conviction, the Attorney General is deemed to
have elected to proceed with the offence as an
offence punishable on summary conviction.
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| If the youth
justice court is
a superior
court
|
(8) In any province where the youth justice
court is a superior court, an appeal under
subsection (5) shall be made to the court of
appeal of the province.
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| Nunavut
|
(9) Despite subsection (8), if the Nunavut
Court of Justice is acting as a youth justice
court, an appeal under subsection (5) shall be
made to a judge of the Nunavut Court of
Appeal, and an appeal of that judge's decision
shall be made to the Nunavut Court of Appeal
in accordance with section 839 of the
Criminal Code.
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| Appeal to the
Supreme
Court of
Canada
|
(10) No appeal lies under subsection (1)
from a judgment of the court of appeal in
respect of a finding of guilt or an order
dismissing an information to the Supreme
Court of Canada unless leave to appeal is
granted by the Supreme Court of Canada.
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| No appeal
from youth
sentence on
review
|
(11) No appeal lies from a youth sentence
under section 59 or any of sections 93 to 95.
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| Purpose
|
37. (1) The purpose of sentencing under
section 41 is to contribute to the protection of
society by holding a young person
accountable for an offence through the
imposition of just sanctions that have
meaningful consequences for the young
person and that promote his or her
rehabilitation and reintegration into society.
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| Sentencing
principles
|
(2) A youth justice court that imposes a
youth sentence on a young person shall
determine the sentence in accordance with the
following principles:
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(a) the sentence must not result in a
punishment that is greater than the
punishment that would be appropriate for
an adult who has been convicted of the same
offence committed in similar
circumstances;
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(b) the sentence must be similar to the
sentences imposed on young persons found
guilty of the same offence committed in
similar circumstances;
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(c) the sentence must be proportionate to
the seriousness of the offence and the
degree of responsibility of the young person
for that offence; and
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(d) subject to paragraph (c), the sentence
must
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(i) be the least restrictive sentence that is
capable of achieving the purpose set out
in subsection (1),
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(ii) be the one that is most likely to
rehabilitate the young person and
reintegrate him or her into society, and
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(iii) promote a sense of responsibility in
the young person, and an
acknowledgement of the harm done to
victims and the community.
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| Factors to be
considered
|
(3) In determining a youth sentence, the
youth justice court shall take into account
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(a) the degree of participation by the young
person in the commission of the offence;
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(b) the harm done to victims and whether it
was intentional or reasonably foreseeable;
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(c) any reparation made by the young
person to the victim or the community;
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(d) the time spent in detention by the young
person as a result of the offence;
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(e) the previous findings of guilt of the
young person; and
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(f) any other aggravating and mitigating
circumstances related to the young person
and the offence that are relevant to the
purpose and principles set out in this
section.
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| Restriction on
committal to
custody
|
38. (1) A youth justice court shall not
commit a young person to custody under
section 41 unless
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(a) the young person has committed a
violent offence;
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(b) the young person has failed to comply
with previous non-custodial sentences;
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(c) the young person has committed an
indictable offence for which an adult could
be sentenced to imprisonment for more than
two years and has a history that indicates a
pattern of findings of guilt under this Act or
the Young Offenders Act, chapter Y-1 of the
Revised Statutes of Canada, 1985; or
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(d) the circumstances of the offence make
the imposition of a non-custodial sentence
inconsistent with the purpose and principles
set out in section 37.
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| Alternatives
to custody
|
(2) A youth justice court shall not impose a
custodial sentence under section 41 unless the
court has considered all alternatives to
custody raised at the sentencing hearing that
are reasonable in the circumstances, and
determined that there is not a reasonable
alternative, or combination of alternatives,
that is in accordance with the purpose and
principles set out in section 37.
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| Factors to be
considered
|
(3) In determining whether there is a
reasonable alternative to custody, a youth
justice court shall consider submissions
relating to
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(a) the alternatives to custody that are
available;
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(b) the likelihood that the young person will
comply with a non-custodial sentence, as
evidenced by his or her compliance with
previous non-custodial sentences; and
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(c) the alternatives to custody that have
been used in respect of young persons for
similar offences committed in similar
circumstances.
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| Imposition of
same sentence
|
(4) Evidence that a particular non-custodial
sentence has been imposed previously on a
young person does not preclude a youth justice
court from imposing the same non-custodial
sentence for another offence.
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| Custody as
social
measure
prohibited
|
(5) A youth justice court shall not use
custody as a substitute for appropriate child
protection, mental health or other social
measures.
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| Pre-sentence
report
|
(6) Before imposing a youth sentence under
paragraph 41(2)(n), (p) or (q), a youth justice
court shall consider a pre-sentence report and
any sentencing proposal made by the young
person or his or her counsel.
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| Report
dispensed
with
|
(7) A youth justice court may, with the
consent of the prosecutor and the young
person or his or her counsel, dispense with a
pre-sentence report if the court is satisfied that
the report is not necessary.
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| Length of
custody
|
(8) In determining the length of a youth
sentence that includes a custodial portion, a
youth justice court shall be guided by the
purpose and principles set out in section 37,
and shall not take into consideration the fact
that the supervision portion of the sentence
may not be served in custody and that the
sentence may be reviewed by the court under
section 93.
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| Reasons
|
(9) If a youth justice court imposes a youth
sentence that includes a custodial portion, the
court shall state the reasons why it has
determined that a non-custodial sentence is
not adequate to achieve the purpose set out in
subsection 37(1).
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| Pre-sentence
report
|
39. (1) If a youth justice court considers it
advisable before imposing sentence on a
young person found guilty of an offence, it
may, and if a youth justice court is required
under this Act to consider a pre-sentence
report before making an order or a sentence in
respect of a young person, it shall, require the
provincial director to cause to be prepared a
pre-sentence report in respect of the young
person and to submit the report to the court.
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| Contents of
report
|
(2) A pre-sentence report made in respect of
a young person shall, subject to subsection (3),
be in writing and shall include the following,
to the extent that it is relevant to the purpose
and principles of sentencing set out in section
37 and to the criteria set out in section 38:
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(a) the results of an interview with the
young person and, if reasonably possible,
the parents of the young person and, if
appropriate and reasonably possible,
members of the young person's extended
family;
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(b) the results of an interview with the
victim in the case, if applicable and
reasonably possible;
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(c) the recommendations resulting from any
conference;
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(d) any information that is applicable to the
case, including
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(i) the age, maturity, character, behaviour
and attitude of the young person and his
or her willingness to make amends,
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(ii) any plans put forward by the young
person to change his or her conduct or to
participate in activities or undertake
measures to improve himself or herself,
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(iii) subject to subsection 118(2), the
history of previous findings of
delinquency under the Juvenile
Delinquents Act, chapter J-3 of the
Revised Statutes of Canada, 1970, or
previous findings of guilt for offences
under the Young Offenders Act, chapter
Y-1 of the Revised Statutes of Canada,
1985, or under this or any other Act of
Parliament or any regulation made under
it or under an Act of the legislature of a
province or any regulation made under it
or a by-law or ordinance of a
municipality, the history of community
or other services rendered to the young
person with respect to those findings and
the response of the young person to
previous sentences or dispositions and to
services rendered to him or her,
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(iv) subject to subsection 118(2), the
history of alternative measures under the
Young Offenders Act, chapter Y-1 of the
Revised Statutes of Canada, 1985, or
extrajudicial sanctions used to deal with
the young person and the response of the
young person to those measures or
sanctions,
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(v) the availability and appropriateness
of community services and facilities for
young persons and the willingness of the
young person to avail himself or herself
of those services or facilities,
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(vi) the relationship between the young
person and the young person's parents
and the degree of control and influence of
the parents over the young person and, if
appropriate and reasonably possible, the
relationship between the young person
and the young person's extended family
and the degree of control and influence of
the young person's extended family over
the young person, and
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(vii) the school attendance and
performance record and the employment
record of the young person;
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(e) any information that may assist the court
in determining under subsection 38(2)
whether there is an alternative to custody;
and
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(f) any information that the provincial
director considers relevant, including any
recommendation that the provincial
director considers appropriate.
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| Oral report
with leave
|
(3) If a pre-sentence report cannot
reasonably be committed to writing, it may,
with leave of the youth justice court, be
submitted orally in court.
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| Report forms
part of record
|
(4) A pre-sentence report shall form part of
the record of the case in respect of which it was
requested.
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