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Chapter 9

CRIM 210 Chapter Notes - Chapter 9: Young Offender, Indictable Offence, Duty Counsel

by dap

Department
Criminology
Course Code
CRIM 210
Professor
Ray Corrado
Chapter
9

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Chapter 9: Going to Court
The Court: A Profile
YCJA attributed to the court decrease in handling cases
Caseloads are directly impacted by changing police practices
Caseload growth through the YOA came from increases in administrative and YOA offence cases
Administrative cases dropped under the YCJA
Administrative offences are still third largest category of offences going to court
Part of the reason of the long range court caseload decrease is due to steady decline in cases coming
before the court for property crimes
o Because of use of extrajudicial measures for property offences
Older youth is always common in youth court than those aged 12 to 15
As charges get more serious, youth court population gets older
o Only true for boys
o Girls have always been charged and sent to court at younger ages than boys
Increase in girls going to court is accounted for by administrative and violence offence charges
Repeat offenders make up about 1/3 of court cases
o More involved in property crime than violent
o Offenders referred to court 2 to 4 times accounted for about 28% of al cases
Boys, age at onset of activity increases steadily and peaks at age 16 to 18
Girls, peaks at age 15 and activity drops substantially
Pretrial Detention
Interim Release or Bail: Provisions that allow an arrested person to be released into the community,
under specific conditions, while waiting for a court appearance within 24 hours
o In practice, most detained youth have their first court appearance within 72 hours of arrest
YCJA requires young people held in detention prior to trial be detained separately from adults
o Unless no youth facility available
o Unless it is unsafe to do so
Does not apply to youth between 18 and 20 who are allowed to be held in adult
provincial facilities
Pretrial Detention: The court ordered holding of an accused person in a prison or detention facility prior
to a court appearance or trial, or while awaiting sentence; sometimes also referred to as remand
Two reasons for pretrial detention
1. Primary Grounds: Invoked when the court is convinced that custody is necessary to ensure that the
youth will appear in court
2. Secondary Grounds: Invoked when the court believes that custody is necessary for public protection
3. Tertiary Grounds: Necessary in order to maintain confidence in the administration of justice
o This should rarely be used
YCJA states that it is prohibited to place a young offender in pretrial detention for a substitute for
appropriate child protection
o Detention is not necessary under certain conditions
Assume that detention is not necessary if the young person would not be sentenced to custody because
of YCJA restrictions on committal to custody
Before the court can detain a young person, it is mandatory that the court investigate as to the availability
of a responsible person
o Parent, adult relative, family friend
o Youth released if responsible person agrees to forgeit money
o Can also allow the youth to refuse this type of release
Specific conditions also imposed such as curfews, no go’s
A youth who does not follow the direction of the person into whose custody he has been released or fails
to comply with the conditions, then they may be charged and returned to court to face these additional
charges
Profile
Number of youth held in pretrial detention increased substantially under the YOA
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The YCJA has not reduced this high use of pretrial detention
YCJA does appear to have had an impact on admissions to remand in term of seriousness of offence
Majority of youth admitted to pretrial detention are 16 and 17 years of age
Among 14 and 15 year olds, more girls are detained than boys
Gils are also detained more often for minor offences
Aboriginals more likely to be detained, especially aboriginal girls
Use of remand has not decreased with the YCJA and may be increasing
Length of stays in remand has decreased
Some youth detained in group homes and detention facilities that offer school, recreation and counselling
programs
o Some jurisdictions do not offer programs in detention facilities
Issues of Widening the Net
Concern for net widening
Concern of absence of definitions for violent offence and serious offence
o Vague definition of serious violent offence in the YCJA
o In adding definitions for serious and violent offences and serious violent offence, government
promises to toughen the legislation
Pretrial issue related to net widening comes from attaching conditions to release
Release conditions are discouraged by the Criminal code unless justified
o Still, vast majority of released youth have conditions imposed
Pretrial detention contributes to net widening by escalating charges for youth through Criminal Code and
YCJA charges associated with violations of release conditions
Pretrial detention is particularly problematic for:
o Homeless you
o Aboriginal youth
o For those whose friends or relatives are not concerned responsible
o For those with poor parental relationships
Many youths end up in detention not because they committed a serious crime but because they
1. Did not follow the direction of the court or their parents
2. Do not have parents, adults or relatives who are able to assume responsibility for them
Transfer to Adult Court
Only for youth over age 14 if charged with a serious indictable offence
Applications for transfer made by Crown or young person
Strike a balance between the interests of society and the needs of the young person
Major concern at transfer hearings was whether the youth was likely to be rehabilitated within the
duration of the sentence allowed in the youth court
Issue was a disresprency between sentences of first degree murder under YOA
o In youth court
Ten-year sentence of 6 years custody and 4 years conditional supervision in the
community
Custody term served in youth facility
Transfer to adult provincial facility possible at age 18
o In adult court
Mandatory life sentence with parole eligibility after 10 years
Sentence served in youth facility, provincial adult facility, federal penitentiary, or
combination of three
YCJA changed it so that the youth imposes a murder sentence of 5 years less a day for those transferred
to and convicted in adult court; a life sentence meant eligibility for parole after 5 to 10 years
Transfer Issues
Automatic transfer of 16 and 17-year-old youth to the adult system created a reverse onus situation
o Onus on the16 or 17 year old to demonstrate to a judge why she should be tried in youth rather
than adult court
Our justice system requires that an accused by presumed innocent until proven guilty in a court of law
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In transfer hearings for youth, we are forced to presume innocence but assume guilt
Adult Sentences and the YCJA
Under the YCJA, concerns about transfer were sidestepped
All youth charges were to be heard in youth court and some youth would automatically be liable for an
adult sentence
Therefore, under the YCJA, the initial issue for the courts was one of lability for an adult sentence, not
transfer
Provisions in the YCJA giving youth court the power to impose adult sentences rather than face the task of
deciding to transfer a youth to adult court
o Presumptive Offense: Under the YCJA, a serious violent offence, or any other violent offence for
which an adult would be liable to a prison sentence of more than 2 years
Three situations in which youth were liable to an adult sentence under the YCJA
1. YCJA required an adult sentence for youth 16 and over who were found guilty of murder, attempted
murder, manslaughter or aggravated sexual assault
a. Presumptive offence rule applied to youth aged 14 and 15 charged with these offences
unless a province changed the minimum age to 15 for its jurisdiction
2. Cout’s ability to impose adult sentences strengthened by extending these powers to also include
serious violent offences
a. Onus on attorney to request an adult sentence and for youth to challenge the request
b. Also youth court can determine that an offence is a serious violent offence
3. There is a three strike rule so youth who had committed a serious violent offence who already had
two prior convictions for serious violent offences were also liable to an adult sentence
Consequence of an adult sentence is that the youth is no longer entitled to a publication ban
o This is a violation of charter rights so the YCJA will be revised
There are now three necessary criteria for liability to an adult sentence
1. Youth must be over age 14
2. Must be found guilty of a serious offence
3. An offence for which an adult would receive a sentence of incarceration for longer than 2 years
Afte a fidig of guilt ad pio to a seteig heaig the out ust odut a heaig o the Co’s
application for an adult sentence
Provinces can still set the age of liability to 15
Two concerns remain
o Bill C-10 addressed issues of presumptive offence and reverse onus but concerns still raised
about presumption of diminished moral culpability
Court Proceedings
Youth court trials begin with a plea
Most youth offenders plead guilty
o This has been declining probably due to increases in proportions of cases with a stayed,
withdrawn, dismissed or discharged outcome
o Girls pleading guilty are increasing while boys are declining due to decrease sin guilty findings for
property offences
If youth pleads guilty, court proceeds directly to sentencing
If youth pleads not guilty, the case goes to trial
Youth court rial is the same as an adult court trial with an exception
o Youth can elect a trial when an application has been made for an order for an adult sentence,
subject to an adult sentence, or facing a murder charge
a. Also the case when the charge is one that would entitle an adult to a jury trial
Processing a case through youth court is longer and more complex under YCJA than YOA
o Requires accused, judge, police, prosecutors, judges other than trial judge, justice of peace,
defense and duty counsel, probation officers, youth workers
o Minimum time to take is 3.5 months
Due to diversion of minor cases from the court to extrajudicial measures
It takes longer for cases that involve trials and serious violent cases
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