Understanding the Age Groups
Early in my first year of law school one of my professors put us onto the topic of discrimination in the law. When students contested that the law cannot discriminate, the professor rebutted: the law discriminates any time it draws a distinction between individuals, and thus the law discriminates all the time. The reality is that the law treats certain groups one way, and other groups in another way, and this is a central tenant of the Youth Criminal Justice Act (YCJA): treat children one way, youth another, and adults another.
The YCJA defines a “child” as anyone under the age of 12. According to section 13 of the Criminal Code of Canada no one can be convicted of an act or omission (something they did or something they were duty bound to do but failed to do) if that act or omission occurred while they were under the age of 12. In sum, if a child under the age of 12 commits an offence they cannot be convicted for it.
An “adult” is anyone who is 18 years old or older. The YCJA is not concerned with adults, unless an adult is being charged with an act they are alleged to have committed while under the age of 18. Adults are tried under the guidance of the Criminal Code of Canada.
The YCJA is primarily concerned with offences by a “young person” which is anyone who is 12 or older, but younger than 18. The purpose of the YCJA, and indeed the principles at its core which are laid out in section 3, is to hold young persons to a different standard than adult offenders in recognition of their ongoing development. To ensure this development is not interrupted by criminal sanctions, the outcome for a young person found guilty of a criminal offence should focus on rehabilitation, reintegration, and intervention. The goal of the sanction should be to reinforce respect for social values, repair harm done, and provide the young person with accommodations for their unique needs.
What Outcomes Should a Young Person Expect?
It’s possible that an offence by a young person does not escalate to a criminal charge, or that the charge is not pursued by the Crown, in favour of a warning or a referral to a form of counselling or treatment. Sections 6 through 9 of the YCJA outline this process. Both the police and the Crown possess the authority to forgo a charge in favour of this “caution”. If you have received such a caution, you can rest knowing it is not admissible as evidence if you are charged with anything in the future.
If the Crown decides the young person cannot be properly dealt with through a caution, they can opt for an extra-judicial sanction. These are non-criminal outcomes, such as community service or agreed upon counselling. The Crown can only assign such a sanction if the young person agrees to it and accepts responsibility, and if the Crown believes they could otherwise proceed with a prosecution with the evidence they have. A parent or guardian must also be notified. While the young person must admit to the offence and accept responsibility, this admission cannot be used in criminal or civil proceedings under section 10(4).
A young person can refuse an extra-judicial outcome if they would prefer to obtain counsel and fight the allegation. As with adult charges, counsel for a young offender is authorized to negotiate with the Crown on their behalf. Your lawyer might, for example, find that the evidence against you is weak, or that the gathering of the evidence violated your Charter rights. This might lead to successful negotiation to have the charges dropped.
Offences by a young person which go to trial occur in specifically designated Youth Justice Courts. Like an adult trial, a successful finding of not guilty results in an instant acquittal. If a young person is found guilty, the judge is guided by part 4 of the YCJA with unique sentencing guidelines. Many factors are considered in determining the sentence, but the sanction is required to be the least restrictive sentence possible while still being proportionate to the offence. It is also required to focus on rehabilitation and reintegration into society while pushing for the young person to acknowledge responsibility. A custodial sentence (such as youth incarceration) is only imposed if the court determines all other sanctions are not appropriate in the circumstances.
Specific sanctions for young persons found guilty by the court can be found under section 42(2) of the YCJA.
Let Our Team Help
Navigating the Criminal Code of Canada, the YCJA, and other regulatory guidelines simultaneously is complex and stressful. We know because we have done it countless times on behalf of clients.
If you or your child are being charged with an offence and were older than 12 but younger than 18 at the time the offence allegedly occurred, contact our office for a free 30-minute consultation. We will use this time to consider the offence, the evidence, any proposed outcomes by the Crown, and the kinds of outcomes you can expect if we represent you. We will inform you of the cost of having our team represent you, and if you decide we are the right fit for the case we will begin diligently fighting the charges. Young persons have the same protected right to counsel as adults, and we would be glad to support you during this challenging time.