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| Medical or
psychological
assessment
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34. (1) A youth justice court may, at any
stage of proceedings against a young person,
by order require that the young person be
assessed by a qualified person who is required
to report the results in writing to the court,
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(a) with the consent of the young person and
the prosecutor; or
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(b) on its own motion or on application of
the young person or the prosecutor, if the
court believes a medical, psychological or
psychiatric report in respect of the young
person is necessary for a purpose mentioned
in paragraphs (2)(a) to (g) and
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(i) the court has 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,
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(ii) the young person's history indicates
a pattern of repeated 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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(iii) the young person is alleged to have
committed a serious violent offence.
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| Purpose of
assessment
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(2) A youth justice court may make an order
under subsection (1) in respect of a young
person for the purpose of
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(a) considering an application under section
33 (release from or detention in custody);
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(b) making its decision on an application
heard under section 71 (hearing - adult
sentences);
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(c) making or reviewing a youth sentence;
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(d) considering an application under
subsection 104(1) (continuation of
custody);
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(e) setting conditions under subsection
105(1) (conditional supervision);
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(f) making an order under subsection 109(2)
(conditional supervision); or
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(g) authorizing disclosure under subsection
127(1) (information about a young person).
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| Custody for
assessment
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(3) Subject to subsections (4) and (6), for
the purpose of an assessment under this
section, a youth justice court may remand a
young person to any custody that it directs for
a period not exceeding thirty days.
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| Presumption
against
custodial
remand
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(4) A young person shall not be remanded
in custody in accordance with an order made
under subsection (1) unless
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(a) the youth justice court is satisfied that
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(i) on the evidence custody is necessary
to conduct an assessment of the young
person, or
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(ii) on the evidence of a qualified person
detention of the young person in custody
is desirable to conduct the assessment of
the young person, and the young person
consents to custody; or
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(b) the young person is required to be
detained in custody in respect of any other
matter or by virtue of any provision of the
Criminal Code.
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| Report of
qualified
person in
writing
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(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
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(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
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(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
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(i) 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, or
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(ii) despite subsection 119(6)
(restrictions respecting access to certain
records), the provincial director, or the
director of the provincial correctional
facility for adults or the penitentiary at
which the young person is serving a
youth sentence, if, in the opinion of the
court, withholding the report would
jeopardize the safety of any person.
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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
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(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
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(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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| Referral to
child welfare
agency
|
35. In addition to any order that it is
authorized to make, a youth justice court may,
at any stage of proceedings against a young
person, refer the young person to a child
welfare agency for assessment to determine
whether the young person is in need of child
welfare services.
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| When young
person pleads
guilty
|
36. (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
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(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
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37. (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 (appeals - indictable offences) 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
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(3) Section 10 of the Criminal Code applies
if a person is convicted of contempt of court
under subsection 27(4) (failure of parent to
attend court).
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| Appeals to be
heard together
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(4) A judicial determination under
subsection 42(9) (judicial determination of
serious violent offence), or an order under
subsection 72(1) (court order - adult or
youth sentence), 75(3) (ban on publication) or
76(1) (placement when subject to adult
sentence), 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 (summary
conviction offences) 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 (appeals - indictable offences) of
the Criminal Code, which Part applies with
any modifications that the circumstances
require.
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| Deemed
election
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(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
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(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 or indictment 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 94 to 96.
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| Purpose
|
38. (1) The purpose of sentencing under
section 42 (youth sentences) 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
principles set out in section 3 and 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 in the region on similar
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
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(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
or the offence that are relevant to the
purpose and principles set out in this
section.
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| Committal to
custody
|
39. (1) A youth justice court shall not
commit a young person to custody under
section 42 (youth sentences) 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 non-custodial sentences;
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(c) the young person has committed an
indictable offence for which an adult would
be liable to imprisonment for a term of 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) in exceptional cases where the young
person has committed an indictable
offence, the aggravating circumstances of
the offence are such that the imposition of
a non-custodial sentence would be
inconsistent with the purpose and principles
set out in section 38.
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| Alternatives
to custody
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(2) If any of paragraphs (1)(a) to (c) apply,
a youth justice court shall not impose a
custodial sentence under section 42 (youth
sentences) 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 38.
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| Factors to be
considered
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(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,
taking into account 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) The previous imposition of a particular
non-custodial sentence on a young person
does not preclude a youth justice court from
imposing the same or any other 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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