Toronto Young Offenders & Youth Criminal Justice System Lawyers
What to do if you’re a youth charged with an offence?
A conviction for any offence has serious consequences. There are many special rules that apply to young people who are charged with offences. Some of these rules are designed to provide additional protections to young people, like publication bans and sealed records. However, these protections are complicated and they can be lost or waived in certain circumstances. Our firm has a lot of experience defending young people charged with criminal offences all across Ontario. We know how to craft a defence to criminal charges, to find and preserve the evidence needed to back it up, and to marshal that evidence in court to provide the best defence possible to the charge. We also use our experience in the court system to successfully negotiate withdrawals and other resolutions to many charges before they ever get to trial.
Sometimes, trials can’t be avoided, and in that case having a lawyer with a proven track record in Court is the most important thing you can do to help your case. You need a lawyer who can persuasively tell your story and present your defence through cross-examination, by preparing you to testify, and by using the law and the facts to persuasively argue your defence in closing submissions.
If you have been charged with an offence or believe that you might be, contact us using the form on this web page immediately for a free consultation about your case.
Young Offenders in Canada – The Youth Criminal Justice Act
Young people in Canada are subject to the same criminal laws as adults. Almost everything that is illegal for an adult is illegal for someone under the age of 18 as well. Young people will be charged by the same police force and their cases are often prosecuted in the same courthouse as everyone else.
However, young offenders are actually treated quite differently in the legal system than adults are. The Youth Criminal Justice Act creates an entirely different set of procedural rules that apply to young people. This Act sets out unique protections that are given specifically to young people, special procedures that apply to youth cases, and an entirely different range of possible sentences.
All of these unique protections and procedures that apply to young people are designed to treat young people differently from adults. The reason for this difference in treatment flows from the idea that young people are not fully developed and mature adults, and that they are not as culpable for their misconduct. The separate system also recognizes the need for young people to have a realistic path to a second chance when they make mistakes. One of the goals of the Act is to ensure there are meaningful consequences for young people who break the law, while also avoiding crushing and life altering consequences, like a permanent criminal record, widespread publication of their misdeeds, and long jail sentences.
Publication Ban on a Young Offender’s Identity:
One of the key protections provided to young people by the Youth Criminal Justice Act relates to privacy. The Act provides a few different protections that are designed to ensure that the fact that a young person has been charged with a crime does not become widely publicized.
Section 110(1) of the Youth Criminal Justice Act makes it an offence to publish the name or any information about a young person that would identify them as a person who has been “dealt with” under the Act. While there are some exceptions to this rule, the Youth Criminal Justice Act’s publication ban is one of the strongest protections the scheme provides to young people. In many cases, news of an arrest becomes widely publicized on TV, in newspapers, and on social media. The Act aims to prevent widespread publication from identifying a young person who has been charged in the hopes that the young person can avoid being “tarred and feathered” or stigmatized as a “criminal.” The fear is that painting a young person as a public villain is both unfair to the young person, and may set that person up for a life time of failure.
There are exceptions to the publication ban provided to young people. One exception is that if the young person ultimately receives an adult sentence for the crime they are convicted of, the ban on publishing their name is lifted. Another is that the police can apply to a judge for permission to publish the name of a young person if they can establish there is reason to believe the young person is a danger to others, or publication of the information is necessary to assist in apprehending the young person.
Young Offenders do not get “permanent” criminal records:
The Youth Criminal Justice Act also provides protections that are designed to make sure a young person does not get a “permanent” criminal record. Again, the thought behind this protection is that a young person should not face a permanent barrier to getting a job or entering a professions because they were charged with an offence when they were a youth.
The Youth Criminal Justice Act achieves this protection in two ways. First, sections 118 and 119 of the Youth Criminal Justice Act place strict limits on the people who are allowed to have access to records relating to a young person’s involvement in the criminal justice system. Second, section 119 of the Act also sets out strict time limits on how long those records can be accessed. In other words, the Act sets out that for a short period of time, there are a small number of people who are permitted to access a young person’s criminal record (e.g. the police, or those who are running a criminal record check). After the time limit expires, the record becomes sealed and completely inaccessible. In effect, this means that the young person has a “clean” record and a fresh start after the time limit expires.
The time when youth records can be accessed is known as the “access period”. The length of the access period depends on the punishment or sentence the young person got at the end of their case, and generally varies from one to five years. If a young person is convicted of another youth charge while a previous charge is still in the “access period,” the time period will be extended. In addition, if a young person is given an adult sentence, the limitations on access to the records are completely removed. Finally, if a young person turns 18 and is convicted of an adult offence while the access period for a youth offence remains open, then the protections will be lost and the youth conviction becomes a permanent entry on the young person’s criminal record.
Bail hearings for young offenders:
A young person who has been arrested may be held for a bail hearing. The process at a youth bail hearing is similar to the process for adults (for more information, see our general section on bail hearings). However, the Youth Criminal Justice Act makes it harder for the Crown to justify detaining a young person in custody, and the presumption is always that the young person should be released. In addition, if a young person is ordered detained in custody, they generally have the right to apply to a judge for a rehearing, where the question of whether the young person should be released will be decided again.
Who counts as a young offender:
Most people understand that someone who is facing a criminal charge who is under the age of 18 is a “young offender.” However, the definition is somewhat broader than this. Anyone who is accused of having committed a crime when they were under the age of 18 will be treated as a young offender, regardless of how old they are when they are arrested and charged.
The Youth Criminal Justice Act creates an entirely different sentencing regime for young people. The sentences set out for adults in the Criminal Code do not apply to young people. There are also no mandatory minimum jail sentences for youth in Canada.
Instead, section 42(2) of the Youth Criminal Justice Act sets out different sentencing options for young people. Some of the sentencing options that are unique to young people include the possibility of reprimands, community service orders, and custody and supervision orders that are to be served first in “closed custody” (i.e. jail) and then in “open custody” (i.e. in the community).
The maximum sentences for young people are also drastically different than for adults. For example, an adult convicted of first degree murder will receive an automatic life sentence, with a minimum of 25 years to be served in jail before they can apply for parole. For a young offender, however, the maximum sentence for first degree murder is 10 years, and only six of those years are to be served in custody.
The Youth Criminal Justice Act allows the Crown Attorney to apply to have a young person sentenced as an adult in certain cases. As mentioned above, an adult sentence has serious consequences for a young person: it removes the publication ban and privacy protections provided by the Act. Section 72(1) of the Act provides that an adult sentence should be imposed if the Crown can establish that the “presumption of diminished moral blameworthiness” has been rebutted, and a youth sentence would not be of sufficient length to hold the young person accountable for their offending behaviour.
Diversion & Extrajudicial Sanctions
The Youth Criminal Justice Act was also designed to ensure more young people are funnelled out of the criminal justice system entirely. The Act encourages the police and Crown Attorneys to consider using “extra judicial sanctions” in relation to young people who come into conflict with the law. In practice, many courthouses have developed “EJS” programs for young people who are facing charges for the first time. These programs often require young people to attend courses, complete community service, or write letters of apology in exchange for eventually having their charges withdrawn.
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