PRINCIPLES

The Declaration of Principle provides that:

• The objectives of the youth justice system are to prevent crime; rehabilitate and reintegrate young persons into society; and ensure meaningful consequences for offences. In these ways, the system can contribute to the long-term protection of society.
  
• The youth justice system must reflect the fact that young persons lack the maturity of adults. The youth system is different from the adult system in many respects, including: measures of accountability are consistent with young persons’ reduced level of maturity; procedural protections are enhanced; rehabilitation and reintegration are given special emphasis; and the importance of timely intervention is recognized.

• Young persons are to be held accountable through interventions that are fair and in proportion to the seriousness of the offence.
  
• Within the limits of fair and proportionate accountability, interventions should reinforce respect for societal values, encourage the repair of harm done, be meaningful to the young person, respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements.
  
• Youth justice proceedings require special guarantees to protect the rights of young people; courtesy, compassion and respect for victims; the opportunity for victims to be informed and to participate; and that parents be informed and encouraged to participate in addressing the young person's offending behaviour.

The potentially competing objectives of the values of holding young offenders accountable and effecting their rehabilitation must still be balanced. To this balance are added such objectives as reinforcing respect for social values, respecting the role of parents, victims, and communities, and responding to gender, culture, and aboriginal status of young offenders.

In relation to adults, there should be a lesser accountability and more emphasis on rehabilitation for YPs.

Sentencing is to be proportional to the offense, and the achievement of rehabilitative objectives cannot justify a more intrusive or severe response than would be merited by the circumstances of the offense. Thus, eg, YPs should never receive a more severe sanction than adults would for the same offence in similar circumstances.

Purpose of YJ: Long term protection of society

It is a Crime Control message and takes a punitive approach to YOs.

This objective will be achieved by:

• Preventing crime by addressing the root causes of crime
• Rehabilitation and reintegration into society
• Meaningful consequences

RIGHTS OF YOUNG PERSONS

YPs are entitled to all due process rights afforded to adults. Because of their vulnerability and immaturity, they are to have special legal protections not afforded to adults. However, in some cases, YPs have less protection for legal rights, eg.,

Beginning of process: Police officer arrests the suspect or issues an order to appear before a court.

Arrest:

Police can arrest a person without a warrant if they believe on reasonable grounds that he has committed an indictable offense or hybrid offense. The police can search any person who has been arrested in order to preserve evidence. If a police officer arrests a person for a summary or hybrid offense, the officer should release the person with a notice to appear in court uness detention is necessary to: (i) establish the identiy, (ii) secure or preserve evidence, (iii) prevent the commission of another offense, or (iv) ensure the attendance of the person in court.

Charter protections:

Everyone has the right to be secure against unreasonable search or seizure.

   9. Everyone has the right not to be arbitrarily detained or imprisoned.

   10. Everyone has the right on arrest or detention

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Search: police officers must obtain a warrant to search a YP’s room, even with the consent of the parents. There must be reasonable grounds that this YP committed an offense. Police may also obtain DNA samples from a suspect, usually by cutting a few hairs or obtaining saliva.

Searches in Schools

Students in school have a reduced expectation of privacy. So, as long as a school official has reasonable grounds to believe that a violation of school regulations or discipline has occurred, a reasonable search and interview of a student may be conducted. This is possible only if the school official is acting to maintain order, discipline, and safety within the school.

If the school official brings in a police officer, then he or she becomes an agent of the police, and the student is entitled to all of the constitutional and statutory provisions that apply before the police can detain a person. In addition to reasonable and probable grounds justifying the arrest, the police must establish reasonable and probable grounds justifying the strip search. Strip searches may be conducted in police stations only, not in schools, save in exceptional situations. Judges have upheld the legality of the search of a locker by a teacher or viceprincipal.

Police questioning

As long as YPs have been properly advised of their rights, and have not been subjected to improper inducements (promise of advantages) or threats (oppressive conditions), a voluntary confession made by a YP to the police will be admitted in court.

Right to consult counsel at the police station (right to speak to the lawyer in private).

Right to consult meaningfully with a parent at the police station: police must advice a YP of the right to consult a parent before being questioned. Police must inform parent ASAP. (Invalid statement when parent was at the police station but YP was not informed for over an hour).

Fingerprints and photographs

The police may fingerprint and photograph a YP charged with an indictable offense, including a hybrid offense. If a YP is found not guilty of the offense, no further use can be made.

First appearance and pre-trial detention

If a YP has been arrested, the police officer may release her, or seek to have the YP detained pending trial. The police must release the YP unless it is in the public interest to detain that person having regard to: (i) prevention of future offenses, and (ii) concern that YP will fail to attend court. Those charged with a serious offense, who have records of prior findings of guilt may be detained. During the bail trial, the Crown must show why the accused must be detained. If detained, there must be periodic rehearing of the detention decision (30 days for S.C, and 90 days for I.O).

If YP is released, notice to appear before the court is given. There may be a recognizance with conditions imposed, such as no communication with the victim or potential witnesses.

Youth Criminal Justice Act: Changing the law on young criminals
CBC News Online | June 23, 2006

Prior to the Juvenile Delinquents Act in 1908, young offenders were treated much like adults – they were held with adults while awaiting trial and received the same sentences as adults. Under the act a youth was treated "not as a criminal, but as a misdirected and misguided child."

Youths were not charged with specific offences, but with delinquency. Sentencing was left to the discretion of the judge and was based on the rehabilitation of the offender. Over time, the broad guidelines produced a wide disparity of sentences and the law was criticized for failing to recognize the rights of the child.

The Young Offenders Act in 1984 was an attempt to establish a tighter legal framework by allowing charges on specific offences, and by placing responsibility for the offence on the offender. It was criticized on many counts: for being too soft on the offender; for lacking a clear philosophy on youth justice in Canada; for inconsistent and unfair sentences; for not properly addressing serious and violent offences; for an overuse of the court system; and for not giving enough recognition to the victims.

On April 1, 2003, the Youth Criminal Justice Act (YCJA) officially replaced the Young Offenders Act. It aims to emphasize the rehabilitation and re-entry of a young offender into society. The new act addresses the criticism that Canada's youth justice system lacked a clear philosophy, laying out a Declaration of Principles:

"The youth criminal justice system is to prevent crime by addressing the circumstances underlying a young person's offending behaviour, rehabilitate young persons who commit offences and reintegrate them back into society, and ensure that a young person is subject to meaningful consequences for his or her offences, in order to promote the long-term protection of the public."

Highlights of the act include:

• An end to transfers to adult court. If the offender is found guilty in a youth court, the judge has the authority to impose an adult sentence.
• Lowering the age of presumption to 14. Under the YOA, it was presumed youths aged 16 and over convicted of a serious offence such as murder were transferred to adult court. The new act lowers the age to 14, but individual provinces can adjust the age to 15 or 16.
• Less emphasis on custody as a sentence for non-violent or less serious offences. Custody is to be reserved for violent and repeat offenders.
• Emphasis on alternative youth sentencing methods (out of court), such as referrals to community programs, formal letters of warning to parents, meetings with police.
• Access by victims to youth court records, and notification of victims if the offender is sentenced out of court.
• Imposition of a new mandatory period of intensive supervision on all young offenders following their release from jail.

Critics of the YCJA felt it was too lenient and when the Conservative Harper government came into power in January 2006, it lobbied for harsher sentences, arguing that they would be a deterrent to would-be youth criminals and cut down on repeat offenders.

In June 2006, the Supreme Court of Canada ruled "since no basis can be found in the Youth Criminal Justice Act for imposing a harsher sanction than would otherwise be called for to deter others from committing crimes, general deterrence is not a principle of youth sentence under the new regime."