Custody as
social
measure
prohibited
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(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
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(6) Before imposing a custodial sentence
under section 42 (youth sentences), 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
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(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
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(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 38,
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 94.
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Reasons
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(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 38(1), including, if applicable, the
reasons why the case is an exceptional case
under paragraph (1)(d).
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Pre-sentence
report
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40. (1) Before imposing sentence on a
young person found guilty of an offence, a
youth justice court
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(a) shall, if it is required under this Act to
consider a pre-sentence report before
making an order or a sentence in respect of
a young person, and
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(b) may, if it considers it advisable,
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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
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(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
38 and to the restrictions on custody set out in
section 39:
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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 referred to in section 41;
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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 119(2) (period
of access to records), 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, 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 119(2) (period
of access to records), 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 39(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
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(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
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(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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Copies of
pre-sentence
report
|
(5) If a pre-sentence report made in respect
of a young person is submitted to a youth
justice court in writing, the court
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(a) shall, subject to subsection (7), 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) 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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(6) If a pre-sentence report made in respect
of a young person is submitted to a youth
justice court, 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 (7), on application
to the court, be given the opportunity to
cross-examine the person who made the
report.
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Report may
be withheld
from private
prosecutor
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(7) If a pre-sentence report made in respect
of a young person is submitted to a youth
justice court, the court may, when the
prosecutor is a private prosecutor and
disclosure of all or part of the report to the
prosecutor might, in the opinion of the court,
be prejudicial to the young person and is not,
in the opinion of the court, necessary for the
prosecution of the case against the young
person,
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(a) withhold the report or part from the
prosecutor, if the report is submitted in
writing; or
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(b) exclude the prosecutor from the court
during the submission of the report or part,
if the report is submitted orally in court.
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Report
disclosed to
other persons
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(8) If a pre-sentence report made in respect
of a young person is submitted to a youth
justice court, the court
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(a) shall, on request, cause a copy or a
transcript of the report to be supplied to
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(i) any court that is dealing with matters
relating to the young person, and
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(ii) any youth worker to whom the young
person's case has been assigned; and
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(b) may, on request, cause a copy or a
transcript of all or part of the report to be
supplied to any person not otherwise
authorized under this section to receive a
copy or a transcript of the report if, in the
opinion of the court, the person has a valid
interest in the proceedings.
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Disclosure by
the provincial
director
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(9) A provincial director who submits a
pre-sentence report made in respect of a young
person to a youth justice court may make all
or part of the report available to any person in
whose custody or under whose supervision the
young person is placed or to any other person
who is directly assisting in the care or
treatment of the young person.
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Inadmissibilit
y of
statements
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(10) No statement made by a young person
in the course of the preparation of a
pre-sentence report in respect of the young
person is admissible in evidence against any
young person in civil or criminal proceedings
except those under section 42 (youth
sentences), 59 (review of non-custodial
sentence) or 71 (hearing - adult sentences)
or any of sections 94 to 96 (reviews and other
proceedings related to custodial sentences).
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Recommendat
ion of
conference
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41. When a youth justice court finds a
young person guilty of an offence, the court
may convene or cause to be convened a
conference under section 19 for
recommendations to the court on an
appropriate youth sentence.
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Consideration
s as to youth
sentence
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42. (1) A youth justice court shall, before
imposing a youth sentence, consider any
recommendations submitted under section 41,
any pre-sentence report, any representations
made by the parties to the proceedings or their
counsel or agents and by the parents of the
young person, and any other relevant
information before the court.
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Youth
sentence
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(2) When a youth justice court finds a young
person guilty of an offence and is imposing a
youth sentence, the court shall, subject to this
section, impose any one of the following
sanctions or any number of them that are not
inconsistent with each other and, if the offence
is first degree murder or second degree murder
within the meaning of section 231 of the
Criminal Code, the court shall impose a
sanction set out in paragraph (q) or
subparagraph (r)(ii) or (iii) and may impose
any other of the sanctions set out in this
subsection that the court considers
appropriate:
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(a) reprimand the young person;
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(b) by order direct that the young person be
discharged absolutely, if the court considers
it to be in the best interests of the young
person and not contrary to the public
interest;
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(c) by order direct that the young person be
discharged on any conditions that the court
considers appropriate and may require the
young person to report to and be supervised
by the provincial director;
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(d) impose on the young person a fine not
exceeding $1,000 to be paid at the time and
on the terms that the court may fix;
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(e) order the young person to pay to any
other person at the times and on the terms
that the court may fix an amount by way of
compensation for loss of or damage to
property or for loss of income or support, or
an amount for, in the Province of Quebec,
pre-trial pecuniary loss or, in any other
province, special damages, for personal
injury arising from the commission of the
offence if the value is readily ascertainable,
but no order shall be made for other
damages in the Province of Quebec or for
general damages in any other province;
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(f) order the young person to make
restitution to any other person of any
property obtained by the young person as a
result of the commission of the offence
within the time that the court may fix, if the
property is owned by the other person or
was, at the time of the offence, in his or her
lawful possession;
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(g) if property obtained as a result of the
commission of the offence has been sold to
an innocent purchaser, where restitution of
the property to its owner or any other person
has been made or ordered, order the young
person to pay the purchaser, at the time and
on the terms that the court may fix, an
amount not exceeding the amount paid by
the purchaser for the property;
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(h) subject to section 54, order the young
person to compensate any person in kind or
by way of personal services at the time and
on the terms that the court may fix for any
loss, damage or injury suffered by that
person in respect of which an order may be
made under paragraph (e) or (g);
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(i) subject to section 54, order the young
person to perform a community service at
the time and on the terms that the court may
fix, and to report to and be supervised by the
provincial director or a person designated
by the youth justice court;
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(j) subject to section 51 (mandatory
prohibition order), make any order of
prohibition, seizure or forfeiture that may
be imposed under any Act of Parliament or
any regulation made under it if an accused
is found guilty or convicted of that offence,
other than an order under section 161 of the
Criminal Code;
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(k) place the young person on probation in
accordance with sections 55 and 56
(conditions and other matters related to
probation orders) for a specified period not
exceeding two years;
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(l) subject to subsection (3) (agreement of
provincial director), order the young person
into an intensive support and supervision
program approved by the provincial
director;
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(m) subject to subsection (3) (agreement of
provincial director) and section 54, order
the young person to attend a non-residential
program approved by the provincial
director, at the times and on the terms that
the court may fix, for a maximum of two
hundred and forty hours, over a period not
exceeding six months;
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(n) make a custody and supervision order
with respect to the young person, ordering
that a period be served in custody and that
a second period - which is one half as long
as the first - be served, subject to sections
97 (conditions to be included) and 98
(continuation of custody), under
supervision in the community subject to
conditions, the total of the periods not to
exceed two years from the date of the
coming into force of the order or, if the
young person is found guilty of an offence
for which the punishment provided by the
Criminal Code or any other Act of
Parliament is imprisonment for life, three
years from the date of coming into force of
the order;
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(o) in the case of an offence set out in
subparagraph (a)(ii), (iii) or (iv) of the
definition ``presumptive offence'' in
subsection 2(1), make a custody and
supervision order in respect of the young
person for a specified period not exceeding
three years from the date of committal that
orders the young person to be committed
into a continuous period of custody for the
first portion of the sentence and, subject to
subsection 104(1) (continuation of
custody), to serve the remainder of the
sentence under conditional supervision in
the community in accordance with section
105;
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(p) subject to subsection (5), make a
deferred custody and supervision order that
is for a specified period not exceeding six
months, subject to the conditions set out in
subsection 105(2), and to any conditions set
out in subsection 105(3) that the court
considers appropriate;
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(q) order the young person to serve a
sentence not to exceed
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(i) in the case of first degree murder, ten
years comprised of
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(A) a committal to custody, to be
served continuously, for a period that
must not, subject to subsection 104(1)
(continuation of custody), exceed six
years from the date of committal, and
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(B) a placement under conditional
supervision to be served in the
community in accordance with section
105, and
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(ii) in the case of second degree murder,
seven years comprised of
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(A) a committal to custody, to be
served continuously, for a period that
must not, subject to subsection 104(1)
(continuation of custody), exceed four
years from the date of committal, and
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(B) a placement under conditional
supervision to be served in the
community in accordance with section
105;
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(r) subject to subsection (7), make an
intensive rehabilitative custody and
supervision order in respect of the young
person
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(i) that is for a specified period that must
not exceed
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(A) two years from the date of
committal, or
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(B) if the young person is found guilty
of an offence for which the punishment
provided by the Criminal Code or any
other Act of Parliament is
imprisonment for life, three years from
the date of committal,
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and that orders the young person to be
committed into a continuous period of
intensive rehabilitative custody for the
first portion of the sentence and, subject
to subsection 104(1) (continuation of
custody), to serve the remainder under
conditional supervision in the
community in accordance with section
105,
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(ii) that is for a specified period that must
not exceed, in the case of first degree
murder, ten years from the date of
committal, comprising
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(A) a committal to intensive
rehabilitative custody, to be served
continuously, for a period that must not
exceed six years from the date of
committal, and
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(B) subject to subsection 104(1)
(continuation of custody), a placement
under conditional supervision to be
served in the community in
accordance with section 105, and
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(iii) that is for a specified period that must
not exceed, in the case of second degree
murder, seven years from the date of
committal, comprising
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(A) a committal to intensive
rehabilitative custody, to be served
continuously, for a period that must not
exceed four years from the date of
committal, and
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(B) subject to subsection 104(1)
(continuation of custody), a placement
under conditional supervision to be
served in the community in
accordance with section 105; and
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(s) impose on the young person any other
reasonable and ancillary conditions that the
court considers advisable and in the best
interests of the young person and the public.
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Agreement of
provincial
director
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(3) A youth justice court may make an order
under paragraph (2)(l) or (m) only if the
provincial director has determined that a
program to enforce the order is available.
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Youth justice
court
statement
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(4) When the youth justice court makes a
custody and supervision order with respect to
a young person under paragraph (2)(n), the
court shall state the following with respect to
that order:
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