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(a) the seriousness and circumstances of the
alleged offence,
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(b) the age, maturity, character and
background of the young person and any
previous criminal record,
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(c) the likelihood that the young person will
cause significant harm to any person if
released on expiry of the cap that applies to
the young person under subsection (7), and
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(d) the respective caps that would apply to
the young person under this Act and under
the Criminal Code.
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If the court is satisfied that it would make an
order under subsection 64(5) (application for
adult sentence unopposed) or 70(2) (no
application by young person to avoid adult
sentence) or paragraph 72(1)(b) (imposition
of adult sentence) if the young person were fit
to stand trial, it shall apply to the young person
the cap that would apply to an adult for the
same offence.
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| Prima facie
case to be
made every
year
|
(10) For the purpose of applying subsection
672.33(1) (fitness to stand trial) of the
Criminal Code to proceedings under this Act
in relation to an offence alleged to have been
committed by a young person, wherever in
that subsection a reference is made to two
years, there shall be substituted a reference to
one year.
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| Designation
of hospitals
for young
persons
|
(11) A reference in Part XX.1 (mental
disorder) of the Criminal Code to a hospital in
a province shall be construed as a reference to
a hospital designated by the Minister of Health
for the province for the custody, treatment or
assessment of young persons.
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| Definition of
``Review
Board''
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(12) In this section, ``Review Board'' has
the meaning assigned by section 672.1 of the
Criminal Code.
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| Part XXVII
and summary
conviction
trial
provisions of
Criminal
Code to apply
|
142. (1) Subject to this section and except
to the extent that they are inconsistent with
this Act, the provisions of Part XXVII
(summary conviction offences) of the
Criminal Code, and any other provisions of
that Act that apply in respect of summary
conviction offences and relate to trial
proceedings, apply to proceedings under this
Act
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(a) in respect of an order under section 810
(recognizance - fear of injury or damage),
810.01 (recognizance - fear of criminal
organization offence) or 810.2
(recognizance - fear of serious personal
injury offence) of that Act or an offence
under section 811 (breach of recognizance)
of that Act;
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(b) in respect of a summary conviction
offence; and
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(c) in respect of an indictable offence as if
it were defined in the enactment creating it
as a summary conviction offence.
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| Indictable
offences
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(2) For greater certainty and despite
subsection (1) or any other provision of this
Act, an indictable offence committed by a
young person is, for the purposes of this Act or
any other Act of Parliament, an indictable
offence.
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| Attendance of
young person
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(3) Section 650 of the Criminal Code
applies in respect of proceedings under this
Act, whether the proceedings relate to an
indictable offence or an offence punishable on
summary conviction.
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| Limitation
period
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(4) In proceedings under this Act,
subsection 786(2) of the Criminal Code does
not apply in respect of an indictable offence.
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| Costs
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(5) Section 809 of the Criminal Code does
not apply in respect of proceedings under this
Act.
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| Counts
charged in
information
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143. Indictable offences and offences
punishable on summary conviction may under
this Act be charged in the same information or
indictment and tried jointly.
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| Issue of
subpoena
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144. (1) If a person is required to attend to
give evidence before a youth justice court, the
subpoena directed to that person may be
issued by a youth justice court judge, whether
or not the person whose attendance is required
is within the same province as the youth
justice court.
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| Service of
subpoena
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(2) A subpoena issued by a youth justice
court and directed to a person who is not
within the same province as the youth justice
court shall be served personally on the person
to whom it is directed.
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| Warrant
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145. A warrant issued by a youth justice
court may be executed anywhere in Canada.
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| General law
on
admissibility
of statements
to apply
|
146. (1) Subject to this section, the law
relating to the admissibility of statements
made by persons accused of committing
offences applies in respect of young persons.
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| When
statements are
admissible
|
(2) No oral or written statement made by a
young person who is less than eighteen years
old, to a peace officer or to any other person
who is, in law, a person in authority, on the
arrest or detention of the young person or in
circumstances where the peace officer or other
person has reasonable grounds for believing
that the young person has committed an
offence is admissible against the young person
unless
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(a) the statement was voluntary;
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(b) the person to whom the statement was
made has, before the statement was made,
clearly explained to the young person, in
language appropriate to his or her age and
understanding, that
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(i) the young person is under no
obligation to make a statement,
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(ii) any statement made by the young
person may be used as evidence in
proceedings against him or her,
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(iii) the young person has the right to
consult counsel and a parent or other
person in accordance with paragraph (c),
and
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(iv) any statement made by the young
person is required to be made in the
presence of counsel and any other person
consulted in accordance with paragraph
(c), if any, unless the young person
desires otherwise;
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(c) the young person has, before the
statement was made, been given a
reasonable opportunity to consult
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(ii) with a parent or, in the absence of a
parent, an adult relative or, in the absence
of a parent and an adult relative, any
other appropriate adult chosen by the
young person, as long as that person is not
a co-accused, or under investigation, in
respect of the same offence; and
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(d) if the young person consults a person in
accordance with paragraph (c), the young
person has been given a reasonable
opportunity to make the statement in the
presence of that person.
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| Exception in
certain cases
for oral
statements
|
(3) The requirements set out in paragraphs
(2)(b) to (d) do not apply in respect of oral
statements if they are made spontaneously by
the young person to a peace officer or other
person in authority before that person has had
a reasonable opportunity to comply with those
requirements.
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| Waiver of
right to
consult
|
(4) A young person may waive the rights
under paragraph (2)(c) or (d) but any such
waiver
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(a) must be recorded on video tape or audio
tape; or
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(b) must be in writing and contain a
statement signed by the young person that
he or she has been informed of the right
being waived.
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| Waiver of
right to
consult
|
(5) When a waiver of rights under
paragraph (2)(c) or (d) is not made in
accordance with subsection (4) owing to a
technical irregularity, the youth justice court
may determine that the waiver is valid if it is
satisfied that the young person was informed
of his or her rights, and voluntarily waived
them.
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| Admissibility
of statements
|
(6) When there has been a technical
irregularity in complying with paragraphs
(2)(b) to (d), the youth justice court may admit
into evidence a statement referred to in
subsection (2), if satisfied that the admission
of the statement would not bring into disrepute
the principle that young persons are entitled to
enhanced procedural protection to ensure that
they are treated fairly and their rights are
protected.
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| Statements
made under
duress are
inadmissible
|
(7) A youth justice court judge may rule
inadmissible in any proceedings under this
Act a statement made by the young person in
respect of whom the proceedings are taken if
the young person satisfies the judge that the
statement was made under duress imposed by
any person who is not, in law, a person in
authority.
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| Misrepresenta
tion of age
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(8) A youth justice court judge may in any
proceedings under this Act rule admissible
any statement or waiver by a young person if,
at the time of the making of the statement or
waiver,
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(a) the young person held himself or herself
to be eighteen years old or older;
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(b) the person to whom the statement or
waiver was made conducted reasonable
inquiries as to the age of the young person
and had reasonable grounds for believing
that the young person was eighteen years
old or older; and
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(c) in all other circumstances the statement
or waiver would otherwise be admissible.
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| Parent, etc.,
not a person
in authority
|
(9) For the purpose of this section, a person
consulted under paragraph (2)(c) is, in the
absence of evidence to the contrary, deemed
not to be a person in authority.
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| Statements
not admissible
against young
person
|
147. (1) Subject to subsection (2), if a young
person is assessed in accordance with an order
made under subsection 34(1) (medical or
psychological assessment), no statement or
reference to a statement made by the young
person during the course and for the purposes
of the assessment to the person who conducts
the assessment or to anyone acting under that
person's direction is admissible in evidence,
without the consent of the young person, in
any proceeding before a court, tribunal, body
or person with jurisdiction to compel the
production of evidence.
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| Exceptions
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(2) A statement referred to in subsection (1)
is admissible in evidence for the purposes of
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(a) making a decision on an application
heard under section 71 (hearing - adult
sentences);
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(b) determining whether the young person
is unfit to stand trial;
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(c) determining whether the balance of the
mind of the young person was disturbed at
the time of commission of the alleged
offence, if the young person is a female
person charged with an offence arising out
of the death of her newly-born child;
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(d) making or reviewing a sentence in
respect of the young person;
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(e) determining whether the young person
was, at the time of the commission of an
alleged offence, suffering from automatism
or a mental disorder so as to be exempt from
criminal responsibility by virtue of
subsection 16(1) of the Criminal Code, if
the accused puts his or her mental capacity
for criminal intent into issue, or if the
prosecutor raises the issue after verdict;
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(f) challenging the credibility of a young
person in any proceeding if the testimony of
the young person is inconsistent in a
material particular with a statement
referred to in subsection (1) that the young
person made previously;
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(g) establishing the perjury of a young
person who is charged with perjury in
respect of a statement made in any
proceeding;
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(h) deciding an application for an order
under subsection 104(1) (continuation of
custody);
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(i) setting the conditions under subsection
105(1) (conditional supervision);
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(j) conducting a review under subsection
109(1) (review of decision); or
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(k) deciding an application for a disclosure
order under subsection 127(1) (information
about a young person).
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| Testimony of
a parent
|
148. (1) In any proceedings under this Act,
the testimony of a parent as to the age of a
person of whom he or she is a parent is
admissible as evidence of the age of that
person.
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| Evidence of
age by
certificate or
record
|
(2) In any proceedings under this Act,
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(a) a birth or baptismal certificate or a copy
of it purporting to be certified under the
hand of the person in whose custody those
records are held is evidence of the age of the
person named in the certificate or copy; and
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(b) an entry or record of an incorporated
society that has had the control or care of the
person alleged to have committed the
offence in respect of which the proceedings
are taken at or about the time the person
came to Canada is evidence of the age of
that person, if the entry or record was made
before the time when the offence is alleged
to have been committed.
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| Other
evidence
|
(3) In the absence of any certificate, copy,
entry or record mentioned in subsection (2), or
in corroboration of that certificate, copy, entry
or record, the youth justice court may receive
and act on any other information relating to
age that it considers reliable.
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| When age
may be
inferred
|
(4) In any proceedings under this Act, the
youth justice court may draw inferences as to
the age of a person from the person's
appearance or from statements made by the
person in direct examination or
cross-examination.
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| Admissions
|
149. (1) A party to any proceedings under
this Act may admit any relevant fact or matter
for the purpose of dispensing with proof of it,
including any fact or matter the admissibility
of which depends on a ruling of law or of
mixed law and fact.
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| Other party
may adduce
evidence
|
(2) Nothing in this section precludes a party
to a proceeding from adducing evidence to
prove a fact or matter admitted by another
party.
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| Material
evidence
|
150. Any evidence material to proceedings
under this Act that would not but for this
section be admissible in evidence may, with
the consent of the parties to the proceedings
and if the young person is represented by
counsel, be given in such proceedings.
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| Evidence of a
child or
young person
|
151. The evidence of a child or a young
person may be taken in proceedings under this
Act only after the youth justice court judge or
the justice in the proceedings has
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(a) if the witness is a child, instructed the
child as to the duty to speak the truth and the
consequences of failing to do so; and
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(b) if the witness is a young person and the
judge or justice considers it necessary,
instructed the young person as to the duty to
speak the truth and the consequences of
failing to do so.
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| Proof of
service
|
152. (1) For the purposes of this Act, service
of any document may be proved by oral
evidence given under oath by, or by the
affidavit or statutory declaration of, the person
claiming to have personally served it or sent it
by confirmed delivery service.
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| Proof of
signature and
official
character
unnecessary
|
(2) If proof of service of any document is
offered by affidavit or statutory declaration, it
is not necessary to prove the signature or
official character of the person making or
taking the affidavit or declaration, if the
official character of that person appears on the
face of the affidavit or declaration.
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| Seal not
required
|
153. It is not necessary to the validity of any
information, indictment, summons, warrant,
minute, sentence, conviction, order or other
process or document laid, issued, filed or
entered in any proceedings under this Act that
any seal be attached or affixed to it.
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