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Good luck studying everyone! :)

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;)
full send

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What is sentencing?
-sentencing in the process in which a judge delivers a judgement or punishment to the individual
-Have to have plead guilty or have been found guilty
How does the YCJA help with sentencing?
-The YCJA provides the judge with principles and a specific purpose to help the judge decide on an appropriate decision
What is the purpose of sentencing?
-The purpose of sentencing is making sure to give a meaningful consequence in order to help rehabilitate the youth that is being sentenced.
What factors must the judge take into account when determining a sentence?
-The degree of harm done to victims
-Any previous findings of guilt of the accused
-Any reparations that have been made to the victims.
What are the principles of sentencing?
-Not result in a punishment worse than an adult would get
-Be similar to other regions
-Be proportionate to the seriousness
-All other options must have been looked at before custody
-Be the least restrictive
-Be the most likely to rehabilitate and reintegrate
-Deter the youth from committing again.
-Promote a sense of responsibility in youth
Principles include:
-All reasonable alternative to custody have been considered

-Custody can’t be used as a substitute for appropriate child protection, mental health or other social measures

-A pre-sentence report should be considered
A youth cannot be committed to custody unless:
-Youth committed a violent crime

-Youth failed to comply with non-custodial sentences

-Youth committed an indictable offence and has a history of it creating a pattern

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What is a youth record?

A youth record is a record of all youth convictions and extrajudicial measures.

Who can keep records of the youth’s criminal history?

Youth Justice court, a review board or any level of court, the government, Police; including the RCMP, as well as a person or organization for managing youth justice.

What are the consequences of having a youth record?

Having a youth record may restrict choices regarding travelling, recreation, sport, employment and college or university study. Youth records may last up to 5 years, depending on the severity of the crime, and can be raised if the youth offends again as well as “closed” cases can be opened.

Who has access to information about youth records?

If a person has a youth record, the following people can or may have access to information about the youth record, depending on who is making the request and for what purpose:

Police Officers, the Crown prosecutor, youth workers, the Judge, the victim, the youth, the youth’s parent(s) or guardian(s), the youth’s lawyer, the Attorney General of the province, the director of a correctional facility, the youth’s school supervisor

How long does a record created from extrajudicial measures last?

The record will be closed after two years if the youth does not commit another offence during that period. If the youth does commit another offence within the two years, the record will stay open and the time will start running again from the date of the end of the new measure, sanction or sentence.

If no further offences are committed following a criminal sentence, when is the youth record destroyed?

If there are no further offences, then the record will be destroyed at the end of the "access period." Generally, the access period lasts 3-5 years after the youth completes the sentence.

Can a youth record turn into an adult record?

Depending on how long the access period is, and whether the youth commits further offences before the access period ends, the youth record may turn into an adult criminal record.

What happens when a youth record is destroyed or sealed?

Once the record is closed, it is either destroyed or sent to the National Archives of Canada or the Provincial Archives to be stored. Records that are stored can be used for certain purposes like research and statistics, but cannot identify the youth.

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Overview

Within the YCJA the publication of a youth’s identity is not generally allowed. The YCJA is focused on rehabilitating youths back into the community and it is believed that the publication of their identity would hinder these efforts and make rehabilitation more difficult.

Exceptions

Although publication of a youth’s identity is not generally allowed there are a few specific exceptions:

1.      If a youth has been found guilty of their crime and given an adult sentence

2.      If the youth poses a danger to others and is currently at large, in this case, the youth’s name can only be published under a court order for a specific period of time. Publication after the expired time must have a new court order

3.      If the youth is now over the age of 18 and not serving a custodial sentence they have the option to publish their name or give permission to have their name published

Court Proceedings

During court proceedings, it is not considered publication to use the youth’s real name. It is deemed publication when the youth’s name appears on TV, in the newspaper, or on the internet.

All written documents refer to the youth by their first and last initial in place of their full name.

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Adult Sentences for Youth

Release Methods:

The forms are slightly different, the release methods are also the same with the exception of additional requirements for the YP to have the ability to have parents present during the process.

What is the transfer process?

The transfer process hearing was eliminated.

When can youth impose adult sentences?

Youth court may impose adult sentences after finding of guilt in youth court if test for adult sentences is met.

Additional Presumptive offences:

· Murder

· Attempted murder

· Manslaughter

· Aggravated sexual assault

What is the presumptive age?

The presumptive age is 14 and older.

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Objective: to gather as a group (may be judges, crown, police and probation officers) to discuss what measures may assist the youth involved.

A conference means to organize a gathering of the group of people to assist that youth.

Conferences are informal and can be

family group conferences

community accountability panels (reparation)

sentencing or healing circles (restorative justice)

combine different professional specializations to approach the problem appropriately

Who may call a conference?
*Slide 30*

A youth justice court judge

the provincial director

a police officer

a justice of the peace

a prosecutor

a youth worker

What is the purpose of a conference?

A conference may be initiated to give advice on:

appropriate extrajudicial measures (such as attend a mediation, community services, apologize to victim in a healing group)

conditions for pre-trial release

sentencing

reintegration plans

Who is the advice given to?

·      Police Officer

·      Judge

·      Justice of the Peace

·      Prosecutor

·      Provincial director in charge of social services

·      Youth worker

Ex.) Advice may be given to:

-       A police officer who is deciding whether to use an extrajudicial measure

-       Judge who is deciding on a sentence

Who establishes the rules for a conference?

-       Police

-       Director in charge of social services

-       Prosecutors

-       Youth workers

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Does the YCJA recognize the rights of victims?
The YCJA recognizes victims interest in cases and keeps them involved at the many stages of the youth justice process.

Sec. 3 "Victims should be treated with courtesy, compassion, and respect for their dignity and privacy"

What does the YCJA say about victims of youth crime? (considerations)
A victim should:

Have a chance to take part in the proceedings and community based measures.

Be heard and told about any proceedings.

Be able to give a victim impact statement.

Have access to information about what's being done for the offender and their records.

How do extrajudicial measures involve the youth?

Victims can make decisions on any consequences/reparations to the young offender.

This encourages the youth to acknowledge their actions and fix the harm done to victim.

Victims must also be told about compensation order and agree to it.

Does the youth have to speak to the victim(s) of his or her crime?
If the youth agrees to participate in a community justice conference, the victim and others who have suffered from him/her will be there too.

If the youth has been found guilty of the offence, he/she may hear a victim impact statement at the time of the sentencing.

Who tells the victim about what is being done to the youth?
Any of the following:

The police

The conference facilitator

The crown

The person dealing with the extrajudicial measure

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Judicial reprimand: The youth receives a stern lecture from the judge, usually in a minor case.

Intensive support and supervision program (ISSP): The youth is closely monitored and has more support than a probation order, this is meant to help the youths behavior.

Deferred custody and supervision order: Allows the youth to serve the sentence in the community usually under a strict curfew or house arrest.

Intensive Rehabilitative Custody and Supervision: A period which they are in custody with mandatory treatment followed by a period of conditional supervision and support in the community.

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How must the police give this information?

You first have to know if the youth knows his/her rights.

You must also speak in a language they will understand and not what an adult would understand.

Can a Youth give up his/her rights?

It is all on the youth to decide if he/she wants to follow through and give up his/her rights, but yes, it’s an option.
When can a youth call a lawyer?

They can be present with the youth during questioning, when in a alternative to a formal court process and when the case goes to trial

IF the trial goes to court, the youth can always have a lawyer.

The youth can get lawyers by the judge or a legal aid programs

What do judges need to consider when sentencing?

The sentence must always the reflect the seriousness of the offence under the YCJA

The YCJA also provides and in-depth list of principles for the judge to consider when sentencing

Judges also must consider and take into account of needs and special requirements for aboriginal youths that need it

Rights when stopped by police?

Police have the right to stop a youth. However, the stop must happen based on facts, not randomly for no reason.

What happens when police stop a youth?

Ask for general information (name, address,etc.)

If stopped while driving, ask for license and insurance

Both general information questions aren’t considered a search

Rights youth have when arrested?

Key information that must be provided to youth upon arrest

Reason for arrest

Have the right to remain silent

The right to know anything the youth may say may be held against them in future proceedings

Can get into contact with a lawyer upon arrival at the police station

Ability to obtain a lawyer for free

Right to contact a parent or guardian privately

Right to have a parent or guardian with them during questioning by police

Rights youth have when being searched?

Section 8 of the charter of rights and freedoms, protects against unreasonable search and seizure

Police can only search someone if they have reasonable grounds to believe that the youth has committed a crime

If it is done the police must prove in court the search was reasonable.

In some circumstances it may be necessary for officers to search a bag to protect their own safety.

Can a youth be held in custody while awaiting trial?

A youth will only be detained if the court agrees the crime is serious enough, or the youth has outstanding charges

If the youth isn’t detained the court must have confidence that the youth won’t

Fail to show up to court

Commit a serious crime

The youth won’t try to escape punishment via the court by fleeing the province, the country, etc.

What is the charter of rights and freedoms?

Legislation that lays out everyone’s rights and freedoms under the law, which includes our legal rights.
Can the government recover costs from the young person or their parents?
The YCJA does not prevent a province from establishing a program to recover costs, although the government doesn't usually do that.

What rights does a youth have during an extrajudicial measure or in court?

Retain counsel (lawyer) and have that counsel present

Be dealt with in a timely manner

Have a trial to determine guilt before any sentence is considered

When can a youth be photographed and fingerprinted?
If a youth has been charged with an indictable offence.

Can a youth waive (give up) his or her rights?
Yes, under the YCJA.

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Youth Sentencing Options (Article 1)

What a judge must do before declaring a sentence on a youth offender

v  If the offender has a criminal record or not

v  The offenders living conditions and daily routine

v  The behaviour of the offender

v  What kind of strain does this leave the victim in

v  The seriousness of the offence that was committed

v  What situation or circumstances were applicable to the offence when it was committed. (What situation was the offender in to make him/her commit this offence)

What sources can the judge use to get additional information?  Circumstances of the Offence

-          Before the judge convicts the offender, the judge must be educated on the circumstances which led to the offender committing the offence. By listening to witness testimony.

-          The judge must review all facts and evidence presented by the Crown attorney if offender chooses to plead guilty

Pre-sentence Report

-          This report must consist of age, education, family support, recent employment, health issues and the history of the extrajudicial measures or by extrajudicial limitations. Also, if the offender had previous convictions in the past, the previous offences must be taken into consideration.

-          Crown Attorney's office (Probation and Boys and Girls Club) will do various interviews with the offender to gain a person to person perspective between the interviewer and the offender

-          Interviews don’t just consist of interviewing the offender. The Boys and Girls Club will also interview individuals that are close to the offender during there probation. (E.g parents. Siblings, teachers and friends or relatives.)

-          They will also interview the victim, to grasp the full perspective of the incident that happened to the victim

-          They will take in as much recommendations as possible by their recourses, whether it being a community resource or rehabilitation approach.

-          Finally, the offender must be completely willing to make amends to create a positive change within their lives and benefit from the situation they have committed

-          When a youth is found guilty the court could be convened for a conference under S.19 which allows police officers, justice of the peace, prosecutors, etc , provide advice on what sentence may be suitable.

-          Victim impact statement: Is a written document made by the victim or a family member if the victim is diseased, ill or incapable. The judge considers this statement when coming to a decision for the case.