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Backgrounder: Safe Streets & Communities Act:
Protecting Society from Violent and Repeat Young Offenders
As part of its commitment to help ensure the safety and security of Canadians, the Government has introduced comprehensive legislation which includes proposed reforms designed to help ensure that violent and repeat young offenders are held fully accountable. Youth sentences would become more proportionate to the severity of the crimes, and the protection of society would be given due consideration in applying the Youth Criminal Justice Act (YCJA).
The Safe Streets and Communities Act proposes amendments to the YCJA that would:
- Highlight the protection of society as a fundamental principle of the Youth Criminal Justice Act
- Currently, the objective of protecting society is not stated strongly enough in the Act.
- This deficiency was identified by the Honourable D. Merlin Nunn in his report, "Spiralling Out of Control: Lessons From a Boy in Trouble," which provided a comprehensive review of youth justice in Nova Scotia. Among other things, Justice Nunn concluded that highlighting public safety as one of the goals or principles of the Act was necessary to improve the handling of repeat young offenders.
- Highlighting this objective within the principles of the Act would give the courts a tool to ensure that the protection of society is taken into account when dealing with youth who commit repeat offences.
- Simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial
- Some find the current rules on pre-trial detention confusing, and argue that this leads to inconsistent and insufficient application. As a result, it is often challenging to hold violent and reckless youth in custody, even when they pose a danger to society.
- The test for pre- trial detention will be set out specifically in the Youth Criminal Justice Act without requiring reference to the Criminal Code provisions as is currently the case. The proposed amendments would remove the current presumption against detention and the cross reference to the sentencing provisions in the Act.
- A "serious offence" would be defined as any indictable offence for which the maximum punishment for an adult is imprisonment for five years or more, including violent offences, property offences (for example, theft over $5,000, auto theft), and offences that could endanger the public (for example dangerous driving, public mischief, unauthorized possession of a firearm and murder).
- Strengthen sentencing provisions and reduce barriers to custody, where appropriate, for violent and repeat young offenders
- Canadians lose confidence in the justice system when a sentence is insufficient to hold an offender accountable for his or her actions, or insufficient to protect society. This loss of confidence is often most notable in cases of violent and repeat offences, including in cases involving young offenders.
- The proposed amendments would strengthen sentencing provisions and remove barriers to custody, where appropriate, for violent and repeat young offenders. These changes would give the courts tools to adequately protect society and to ensure young offenders receive sentences proportionate to the severity of their crimes. Specifically, the legislation would be amended to:
Add "specific deterrence and denunciation" to the principles of sentencing to discourage a particular offender from committing further offences.
Under the current Youth Criminal Justice Act, the courts cannot include deterrence and denunciation as factors in sentencing. This hampers a court's ability to establish an appropriate sentence in some cases, e.g. for repeat offenders or for offenders who demonstrate a lack of remorse or empathy for their victims. "Specific deterrence and denunciation" would allow the courts to impose sanctions designed to discourage the particular offender from committing further offences, when the circumstances of the individual case indicate that this is necessary.
Expand the definition of "violent offence" to include behaviour that endangers the life or safety of others
Under the current Youth Criminal Justice Act, the general rule is that young persons cannot be sentenced to custody unless certain conditions are met. For example, custody is a possible sentencing option if a young person has committed a violent offence. The Supreme Court of Canada defined "violent offence" under the YCJA as an offence in which the young person causes, attempts to cause or threatens to cause bodily harm.
This definition does not capture situations in which a young person's reckless behaviour posed a risk to others, even if it did not result in injury to others. For example, at the moment, a young offender who leads police on a high-speed chase through a residential neighbourhood would likely only be given a custodial sentence if someone was injured as a result.
The proposed amendment would expand the definition of "violent offence" to include offences in which the young person endangers the life or safety of others by creating a substantial likelihood of causing bodily harm. This change would give the courts a tool to help ensure accountability and the protection of society, when the circumstances of the offence require it.
Allow custody to be imposed on youth who have a pattern of findings of guilt or extrajudicial sanctions The current Youth Criminal Justice Act allows for custodial sentences if a young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and when the young person has a history that indicates a pattern of "findings of guilt" under the legislation. Indictable offences include very significant offences - for example, theft over $5,000, auto theft, break and entry and most assaults.
The current requirement for establishing a pattern of criminal activity based on findings of guilt has been criticized by some as being too restrictive when a young person may have committed other offences which have not been dealt with through the formal justice system. As a result, in cases where an offender's history indicates a custodial sentence is necessary to protect society or to hold the offender accountable, it is sometimes impossible to demonstrate the need for such a sentence. For example, a youth facing sentencing for an indictable offence may have no history of findings of guilt, but a long history of extrajudicial sanctions. The offender's full history may indicate escalating criminal activity, so that the courts might consider a non-custodial sentence to be in-effective or inappropriate for that particular offender.
The proposed amendment would enable the courts to take into account a pattern of criminal activity, either through "findings of guilt" or through showing that the young person has a history of extrajudicial sanctions, or through a combination of both. This would allow the courts to take the offender's full history into account to help determine what sentence is appropriate.
- Ensure adult sentences are considered for youth who commit serious violent offences (murder, attempted murder, manslaughter and aggravated sexual assault)
- Under the current Youth Criminal Justice Act, judges may impose adult sentences on youth 14 years of age and over convicted of offences for which an adult could be imprisoned for more than two years, when appropriate. The Crown, however, does not always apply for an adult sentence in such cases, and is not required to consider doing so, even in the most serious cases.
- The proposed amendment would require the Crown to consider seeking an adult sentence for youth convicted of a "serious violent offence" - that is, murder, attempted murder, manslaughter or aggravated sexual assault. The Crown would also be required to inform the court if it chose not to apply for an adult sentence.
- Provinces and territories would still have the discretion to set the age at which this requirement would apply. A province or territory that had set the age for the application of the presumption of adult sentence to 15 or 16 years may similarly raise the age at which the new provision would apply.
- Require the courts to consider lifting the publication ban on the names of young offenders convicted of "violent offences," when youth sentences are given
- Under the current Youth Criminal Justice Act, when an adult sentence is imposed on a youth, the publication ban is automatically lifted. The court can also consider lifting the ban when the Crown applies for it, if the Crown had sought an adult sentence and a youth sentence was imposed instead.
- In practice, violent offenders who are given youth sentences are normally released into the community anonymously. The implications for public safety can be significant - for example, parents may have no way of knowing that a violent offender is in the area.
- The amendment would require judges to consider lifting the publication ban on the names of youth convicted of a violent offence and given a youth sentence, when the protection of society requires it.
- Require police to keep records when informal measures are used in order to make it easier to identify patterns of re-offending
- The amendment would require police to keep records when extrajudicial measures are imposed, to make it easier to identify patterns of re-offending.
- Typically, such measures could include warnings, cautions or referrals to respond to an alleged offence by a young person.
- By requiring that records be kept of these informal measures, police and the courts will be better informed of past incidents so that they can take appropriate action in respect of subsequent offences.
- Ensure that all youth under 18 who are given a custodial sentence will serve it in a youth facility
- The amended legislation will now make it clear that no young person under 18 will serve their sentence in an adult institution, regardless of whether they were given an adult or youth sentence. As is currently the practice, they could be transferred to an adult institution at age 18, if at that point they had not finished serving their sentence.
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Department of Justice Canada
September 2011
