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Lecture 13

Lecture 13-.docx

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Kenneth Campbell

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Sentencing under the Youth Criminal Justice Act Under JDA • Created a separate system for responding to youth who commit crimes • Provided guidance and assistance o not necessarily on rights • Courses of action – not very many • Youth sentence could be altered at any time • Welfare oriented law – broad definition of delinquency • Sentencing decisions in the “best interests” of the youth o rather subjective • Law meant to “correct” and “treat” youth o not necessarily punish • Youth could be under jurisdiction until 21 years • Assumption that courts act solely in the interests of the youth o but don’t always • Legal appeals were restricted – only if special grounds were considered o judge would have to decided if there was special grounds, no automatic right to appeal • Sentences under the JDA did not reflect the seriousness of the offence o kids in same facility, one committed murder and one where parents couldn’t control him • Problematic means of sentencing – indeterminate sentence, no right to appeal, proportionality not relevant here Rehabilitation as a Sentencing Objective • Based on idea that courts can identify the rehabilitative needs f youth and that successful rehabilitative programs are available o odds are against rehabilitation, most don’t think they have a problem, don’t want your help • Difficult to sentence minor offender based on rehabilitative needs • May lead to youth who have committed similar offences getting different sentences The YOA • Created fundamental changes in sentencing • Sentences became “dispositions” and definitive in length (2-3 years max) • No parole or statutory release – 18 months means 18 months • Declaration of Principle (sec.3) has a few provisions related to sentencing o special needs, rehabilitation, parents were part of process • Welfare considerations still relevant, as was rehabilitation • Nature of offence should be taken into account o new and important part, not just based on needs now st nd • Murder sentencing: 10 years (1 ), 7 years (2 degree) o longest determinate sentence for youth up to date • Custody was not a substitute for child welfare concerns o even if legitimate reason • Following enactment of the YOA o sentences increased o custodial sentences more closely linked to the offence • More youth were being sentenced to shorter sentences • Number/proportion of long sentences decreased o had long histories by the time they get prison Identifying Problems with Sentencing under the YOA • Problems led to YCJA • Canada had a high rate of imprisonment of youth when compared to other countries o even if based on nature of offence, we have more kids coming in system • Canada does not differentiate adequately between serious violent and other offences • Response of the justice system did not reflect adequately the variability in severity of offences o now there’s clear distinctions on who gets custody • Increased custodial sentences for relatively minor offences • Quebec uses custody less and more selectively than other provinces o Alberta as well, a lot of disparity • Substantial evidence of sentencing disparity • Ontario used custody in 40% of cases, whereas Quebec did in 27-28% of cases • Public believed that sentences under the YOA were too lenient o media created myths by showing only the bad crimes who got shorter sentences The YCJA • YCJA intended to: o reduce the numbers of youth in custody  costs less and inhumane o Ensure that sentences reflected the seriousness of the offence  new • Contains more explicit sentencing principles • Limits when custody can be used o cases where there is violence • Protection of the public is seen as a consequence of certain approaches to crime • Youth system is designed to: o prevent crime by addressing underlying circumstances o rehabilitate young offenders o ensure youth are subject to meaningful consequences to promote societal protection • Sentence should not be harsher than would be appropriate for a comparable adult • Sentence should be proportionate to the offence and degree of responsibility • Judge must consider all non-custodial sanctions prior to considering custody o last resort • Sentence must rehabilitate, reintegrate, promote responsibility, be least restrictive • Judge must consider rehabilitation, within the limits governed by proportionately • Proportionality refers to the relative harshness of sentence in relation to offence • Restricts custody to cases where: o if it is a violent offence o youth failed to comply with 2 non-custodial orders o youth has committed has committed an indictable offence or there are special
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