WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) of the Act. These subsections and subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with subsections 110(1) and 111(1), read as follows:
110.—(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111.—(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
138.—(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Sault Ste. Marie COURT FILE No. Y519, Y793, Y757, Y883, Y2608
ONTARIO COURT OF JUSTICE YOUTH JUSTICE COURT In the Matter of a Case referred by the Provincial Director to the Youth Justice Court for a Review
BETWEEN:
HER MAJESTY THE QUEEN
Dana Peterson, for the Crown
— AND —
D.J.R.N., a young person
Eric McCooeye, for the Young Person
PROVINCIAL DIRECTOR
Not Present
HEARD: December 13, 2011
KUKURIN J.
[1]
Introduction
This is a decision on a review by this Youth Justice Court ostensibly brought pursuant to section 103(1)1 of the Youth Criminal Justice Act (YCJA).
2This proceeding raises a number of questions that required a closer examination of the provisions of the Youth Criminal Justice Act (YCJA) that apply to such proceedings. Among these are:
(a) Is this review pursuant to s.103 as maintained by counsel for the crown, or is it pursuant to s.109 - or is it pursuant to s.102 YCJA?
(b) What exactly is the “case” that is being referred to the Youth Justice Court for its review? Is it the decision (or actions) of the Provincial Director that the court is to review? Or is it the sentence previously imposed on the young person? Or both?
(c) What are the criteria that the court is required to apply in its determination on the review? Is one criterion that the breach or imminent breach is “serious”. Or that it is not only serious, but also one that increases the risk to public safety?
(d) What kind of hearing is this? Is it adversarial, and if so, who are the adverse parties? Is it a “sentencing hearing”? What is the standard of evidence that applies to reviews of this kind?
(e) Is the suspension of conditional supervision by the Provincial Director authorized under any provision of the YCJA other than s.106? If not, is such suspension implicit in other actions of the Provincial Director?
[3]
Background
The young offender, D.J.R.N., was on a period of community supervision which started November 30, 2011 following completion of the custodial portions of three sentences which were all imposed under section 42(2)(n) YCJA.2
Date of Sentence
April 19, 2011 – 80 days secure custody + 40 days community supervision;
May 24, 2011 – 60 days open custody + 30 days community supervision (consecutive)
Nov. 1, 2011 – 40 days secure custody + 20 days community supervision (concurrent)
Although not well documented, it appears that he was also placed on probation in connection with the April 19, 2011 set of offences.
4D.J.R.N. had somehow served the custodial portion of his three sentences by November 30, 2011.3 He had apparently also served some parts of his periods of community supervision. The balance of his periods of community supervision have, according to the Provincial Director (and confirmed by both counsel), merged, in some magical fashion, to form an aggregate period of community supervision which started November 30, 2011 and was to end December 31, 2011. D.J.R.N. had about a month under conditional supervision to complete after his release from custody.
5The conditions applicable to David during this period included mandatory conditions that are listed in clauses (a) to (f) of section 97(1) YCJA as well as optional conditions which were imposed by the provincial director under section 97(2) YCJA. Formal written notice of all of these was provided to D.J.R.N. on November 30, 2011, and he acknowledged understanding them, and having received a copy (filed as Exhibit 1).
6The conditions that are relevant to this review are a curfew condition, requiring him to be in his place of residence between 11 p.m. and 7 a.m. (with limited specified exceptions, none of which are applicable in this review hearing), and a residency condition, requiring him to reside where approved by his youth worker (i.e. community supervision supervisor).
7After his release from custody, it appears that D.J.R.N.’s “residence” was at the home of his aunt Monica (surname not provided). No one seems to dispute this. Police attended at this residence on December 1, 2011 at 11:50 p.m. and confirmed D.J.R.N. was not present, and was thereby in violation of his curfew condition. He apparently returned to his aunt’s home at approximately 2:30 a.m. The next morning at 9:45 a.m., he contacted his supervisor and advised her of the happenings of the previous evening. He was told to turn himself in to the youth custody facility by 3 p.m., and that his custody and community supervision order was being suspended. In fact, a Notice of Remand/Suspension of Custody and Community Supervision Order was completed on Dec 2, 2011. D.J.R.N. didn’t surrender himself immediately and a Warrant of Apprehension was issued at 4 p.m. that day. However, D.J.R.N. did surrender himself voluntarily on December 4, 2011, at about 3 pm, so that the execution of the warrant was unnecessary.
8The provincial director referred the “case” to the Youth Justice Court for a review,4 presumably after having reviewed his/her suspension of D.J.R.N.’s conditional supervision, and having decided to maintain the suspension. It appears that this referral was required by section 108 YCJA5
9This is how and why this review comes to be before this Youth Justice Court. A report of the provincial director entitled “Young Person’s Progress Report” has been prepared, as required, by section 109(6) YCJA. It is dated December 9, 2011. There is no court filing record to indicate when it was formally submitted to this court, but certainly not before December 9, 2011. A hearing date was set for December 13, 2011 on which date I gave the young person, D.J.R.N., an opportunity to be heard. Naturally, because of the provincial director’s suspension of D.J.R.N.’s period of community supervision, he had remained in custody, according to my calculations, for ten days, from December 4, 2011 to December 13, 2011 inclusive.
[10]
Statutory Framework
The conditions precedent for a review such as this one must logically be specified in the Youth Criminal Justice Act (YCJA). The power of the Provincial Director to suspend the conditional supervision of a young person seems to have its genesis in s.106 YCJA6
11It is not a trivial thing to effectively put behind bars someone who has the right to be in the community. The decision to do so demands even more care when the person is a young person. Accordingly, not only the reasons for doing so, but also the authority to do so require some scrutiny. If s.106 YCJA is indeed the authority relied upon by the Provincial Director to suspend D.J.R.N.’s conditional supervision, it may be that this suspension was not statutorily justified.
12Section 106 YCJA required reasonable grounds on the part of the Provincial Director to believe that D.J.R.N. had breached, or was about to breach, a condition of an order made under s.105 YCJA. However, D.J.R.N. was not subject to any conditions of an order made under s.105 YCJA. Section 105 YCJA applies only to sentence orders made under paragraph 42(2) (o), (q) or (r) YCJA.7 None of D.J.R.N.’s three sentences were imposed under any of these subparagraphs of the statute. His sentences were imposed under s. 42(2)(n) YCJA. This is confirmed in the “Notice of Conditions for Custody and Supervision Order” dated Nov 29, 2011 signed by, or on behalf of the Provincial Director, a copy of which was filed as Exhibit 1 at this hearing. The conditions of the community supervision portion of his three sentences were not made under s.105 YCJA but rather made pursuant to s.97(1) YCJA (mandatory conditions) and s.97(2) YCJA (other conditions).8
13Section 107 YCJA deals with the issuance and execution of warrants of apprehension, with the arrest and detention of a young person, with the bringing of such person before the Provincial Director, and with a potential remand in custody. All of these powers and procedures are premised on or, more properly, contingent upon, a suspension of the conditional supervision of a young person pursuant to s.106 YCJA.
14In a similar fashion, s.108 YCJA9 is contingent upon the arrest and/or remand in custody of a young person whose conditional supervision has been suspended under s. 106 YCJA. Clearly, if the suspension was not authorized under s.106 YCJA, then s.108 YCJA would not apply.
15In summary, following the letter of the law may lead to a position where one has to question the appropriateness of this review and the legality of the steps that led up to it.
16I cannot find any other provisions in the YCJA that authorizes the suspension, by the Provincial Director, of the conditional supervision portion of a sentence imposed pursuant to s.42(2)(n) YCJA. My feeling is that this review actually starts with s.102 YCJA.10 The curfew condition alleged to have been breached by D.J.R.N. is one which was imposed under s.97(2)YCJA. Section 102(1)(b) permits the Provincial Director to order a young person under such community supervision to be remanded to a youth custody facility, but only if the breach, or imminent breach, of a condition “is a serious one that increases the risk of public safety”. Section 102 deals with something quite different than what is dealt with by s.106. Section 102 does not authorize a Provincial Director to suspend a community supervision order. While s.102 may lead to a s.108 Provincial Director’s review, and ultimately to a s.109 Youth Justice Court review, it does not lead to a s.103 review. However, counsel on the review hearing before me appeared adamant that this was a review under s.103 YCJA.
17The YCJA is not the easiest statute to comprehend, even on multiple readings. Assuming for the moment that everything contemplated by s.106, s.107 and s.108, up to the referral of the case to the Youth Justice Court for a review, was proper and lawful, what next? Is the review by the Youth Justice Court to be conducted under s.103 or under s.109 YCJA? Both of these sections start with almost identical wording in terms of the circumstances in which their application is triggered.11 A fair reading of the provisions of s.103 and s.109 lead me to the conclusion that the application of both of them is triggered by a referral under s.108 YCJA. Indeed, s.103(3) specifically provides that the provisions of subsections (4) to (8) inclusive of s.109 apply to a Youth Justice Court review under s.103 YCJA.
18While there are similarities between these two sections, there are also disparities, at least one of which is quite significant. This is the requirement in s.103(2)(b) YCJA that, before ordering the young person to serve the balance of his or her sentence in custody, the court must be satisfied that “the breach of the conditions was serious”. This is a requirement that is not found explicitly in s.109. Since s.109(4) – factors to be considered – apply equally to both s.109 and s.103 reviews, arguably, the pre-requisite for ordering completion of the sentence in custody, namely the serious nature of the breach, is something ‘extra’ that is required if the review is under s.103 YCJA.
19What constitutes a “serious” breach of conditions? While the adjective “serious” has been associated in the YCJA with “violent offences”, there is no statutory association of “serious” with “breach of conditions”12 Nor is “serious” defined in this statute. While jurisprudence is always helpful, none was cited on this point. And I am not aware of any case law where seriousness of a breach has been a statutory criterion for a judicial order.
20While admitting candidly that I am unsure if I am conducting this review under s.103 or s.109 YCJA, I do require that I be satisfied that D.J.R.N.’s breach of condition was “serious” in this case. It seems to me that D.J.R.N. should have the benefit of having this as one of the pre-requisites for ordering him to remain in custody. He has completed the custody portions of his sentences. Under the YCJA, he is entitled to serve the remaining portions in the community. If the state is seeking to take this right away, it must satisfy this pre-requisite. It seems incongruous that this pre-requisite could be by-passed simply by proceeding under a different section of the statute. Moreover, since the Provincial Director is the person who wishes to vary the sentence that was initially imposed, the onus of satisfying the court in this review falls on the Provincial Director.13
[21]
The Breach and Circumstances
There is no dispute by D.J.R.N. that he breached his curfew condition on December 1, 2011. He acknowledges this breach in a letter to the court14 which accepts full responsibility, concedes the wrongness of what he did, and provides some context to his non-compliance by way of explanation.
22It appears that he learned shortly before his release from custody, that his grandmother, who had been his primary caregiver and custodian for most of his 17 years, might have to undergo an amputation of a leg. On his release date, his aunt confirmed that the leg had, in fact, been amputated. His relationship with his aunt at that time was evidently not warm and fuzzy. They quarrelled. She told him that he had to find somewhere else to live. So he began to make arrangements accordingly to readjust his life under community supervision. This included enrolling himself at “late school”.15 Unfortunately, his relationship with his aunt continued to deteriorate, and they argued, so he left her home. He went out with some friends and stayed out beyond his 11 p.m. curfew, fully aware that he was breaching this condition. He returned at 2:30 a.m. expecting that everyone would be sleeping, and he would avoid further conflict. By then, the police – perhaps serendipitously, perhaps not – had stopped by his aunt’s home to find him gone. The foregoing is, of course, the version of events according to D.J.R.N. – unsworn, not cross-examined upon, and tendered by way of handwritten note, and supplemented by narrative comments of his counsel (also unsworn) – all of which seems to be perfectly acceptable as falling within his “opportunity to be heard”.
23One could infer that the violation that prompted the provincial director to suspend his ability to remain at (not quite complete) liberty in the community consisted of being away from his residence for three and one-half hours (11 p.m. to 2:30 a.m.) when he should have been there.
[24]
Position of the Crown
On the other hand, one could look at this case in a different light, one presented by counsel for the Crown, for example. This has a clearly different slant than that with which D.J.R.N. portrayed the circumstances.
25The fact repeated most often in the submissions of counsel for the Crown was that the violation of the community supervision condition took place on the first day after his release from custody.
26The proximity of his release from custody to his violation of his curfew condition was only one consideration raised by the Crown. Prominent among the documents filed by the Crown was the CPIC record and an offence record report for D.J.R.N..16 I refer to these as his “criminal record” for ease of reference, although, since he is still only 17 years old and a young person, none of his 31 entries are technically criminal convictions. However, the fact that there are 31 is significant. So, too, is the fact that 15 of these 31 offences are breaches of one court imposed condition or another. In short, the Crown’s submission on this review emphasizes that David has had many chances in the past to comply with court ordered conditions, has very often not done so, and this most recent curfew violation, coming on the day after his release from custody, is a typical D.J.R.N. response. He has been allowed enough chances.
[27]
Analysis and Options
What are the court’s options on a review of this kind? Although counsel seemed to agree that this review was under section 103 YCJA, I am not so sure that this is correct. Section 103 starts with the words:
“When the case of a young person is referred to the youth justice court under section 108 …”
However, section 108 YCJA does not refer to section 103 at all. In fact, it speaks of the Provincial Director referring the case
“...to the youth justice court for a review under section 109”.
28Under section 109, the court is directed to make an order that deals in some way with the suspension of the community supervision imposed by the Provincial Director, either cancel it or continue it. Under s.103, there is no mention of what the court may or should do with respect to the Provincial Director’s suspension.
29Section 103(2) sets out in alternatives17 what the court must do on completion of its review.18 These alternatives consist of the following:
(a) serve the balance of the sentence under community supervision
(i) with the same conditions, or
(ii) with conditions that are varied, and/or
(iii) with new conditions,
or
(b) remain in custody until the expiry of the youth sentence then being served if the court is satisfied that the breach of the conditions was serious.
30Ultimately, if the review is under s.109, the court has virtually the same alternatives in terms of what it must do.
31The YCJA does provide some guidance in what the court must consider in making its decision on such reviews. This guidance is found in s.109(4) YCJA, which, as I have already noted, applies equally whether the review is under s.103 or 109 YCJA. Section 109(4) contains three considerations that I gather are mandatory.19 There is nothing in s.109(4), however, that limits the court’s considerations to only these three.
32If the “order” that is referred to in s.109(4) is the sentence order, then D.J.R.N. had been subject to it from April 19, 2011 by the time that he breached his curfew condition, a period of a little over seven months. If the word “order” means the (merged) order of conditional supervision, he was subject to this for only one day before he breached.
33How does this impact on what is to be decided on a review? It could be argued that (80 + 60 + 40 =) 180 days of incarceration for a young person, having regard to both the letter and the spirit of the YCJA as to how it views custody, is quite enough. Alternatively, it could be argued that custody is the only realistic alternative for a young person who breaches a condition of his community supervision immediately on being released back into the community. In short, this factor can be argued to support the position of either side on this review.
34Another mandatory consideration is whether the young person has previously breached “the order” (i.e. his conditions of community supervision), and if so, how many times. If this isn’t the first time that this has happened, perhaps the court should be cautious about a return to the community. Alas, neither crown nor counsel for the young person addressed this factor. There is nothing in the Progress Report of the Provincial Director that refers to anything related to this consideration. There is no mention of any prior review hearing based on an alleged breach of a condition of his community supervision. I must assume that this is the first and only time that D.J.R.N. has so breached.
35Yet another mandatory consideration under s.109(4) YCJA has to do with the circumstances surrounding the breach. Not surprisingly, the circumstances can be argued to support either of the arguments made in this review. The most obvious circumstance is the temporal proximity of the breach to the start of the period of community supervision. If D.J.R.N. does this on day two, what is the prognosis for the balance of this period?
36On the other hand, there were some circumstances that weigh on D.J.R.N.’s side. Leaving his aunt’s home when he did was not contrary to his supervision conditions. In fact, his intention to avoid further conflict with her at the time was a good reason for him to leave the home. Staying away until 2:30 am was not. But even while he was out past curfew, he was not committing any substantive offences. There was no evidence that he was misbehaving at all. He was not AWOL for several days; he returned to his residence several hours later, and did so on his own. Moroever, he contacted his supervisor the next morning by 9:30 am to report what had happened and why.
37The imminent amputation of his grandmother’s leg was another circumstance that understandably caused him to become upset. So too did his aunt’s communication made just after his release from custody, that he had to find somewhere else to reside.
38My assessment of these factors is that they support a restoration of D.J.R.N. back to community supervision, and a cancellation of the suspension imposed by the Provincial Director (if there was actually any authority to suspend). There is a theme that pervades the YCJA, namely, that all alternatives to custody that are reasonable should be first considered.20 This, in my view, applies to reviews under s.109 (and also s.103) YCJA.
39D.J.R.N.’s position might have been less than reasonable if he was not able to present a viable plan at this review hearing. In fact, the absence of a plan was cited in the Progress Report as one of the reasons why he should serve the balance of his sentence(s) in custody. However, by the date of the review hearing, D.J.R.N. had assembled a plan that included an acceptable place of residence, attendance in an educational program, and some legitimate support persons who had some faith in him and with whom he had some pre-existing good relationships. That he planned to live in a ‘family’ environment, albeit not his own, was very favourable. A stable residence was also a pre-requisite for qualifying for social assistance for which he had already applied, presumably in expectation of his release from the custody portion of his sentence(s).
40In the event that it is s.103 that governs this review, then I am even more constrained in making an order that would require D.J.R.N. to serve the remainder of his sentence(s) in custody. This is because I am not satisfied that D.J.R.N.’s breach of curfew was serious. So far as I can determine, this was an isolated breach of a community supervision condition. It was short lived in the sense that the period of time in which he was in violation was only 3 ½ hours. He was doing nothing else during this time that was offensive or criminal. He returned of his own volition. He reported his violation promptly to his supervisor. He has acknowledged that he was wrong to have breached his curfew.
41Moreover, if what I am reviewing is not D.J.R.N.’s sentence, but rather, some action of the Provincial Director21, I would have even more difficulty. As stated above, my feeling is that the Provincial Director could only have acted under s.102 YCJA. In order for D.J.R.N. to have been remanded into custody, the Provincial Director must have been satisfied that D.J.R.N.’s breach of condition was not only a serious one, but also one that increased the risk to public safety. Based on what was presented at the review hearing before me, I cannot conclude that this breach was serious, and certainly not that it increased the risk to public safety.
[42]
Reasons for Decision
Section 109(5) YCJA requires the court to state its reasons for whatever order it makes under s.109 (and this applies equally if the order is made under s.103). In addition to the reasons stated above, there are three other reasons for deciding as I have. Firstly, the duration of the period of community supervision following D.J.R.N.’s release from custody was relatively short, a matter of approximately thirty days. This was basically the month of December. The Christmas season falls in the latter half of December. It is a special season for most people. It does not make much sense for D.J.R.N. to have to spend this time in custody, and it does make considerably more sense for him to have the benefit of celebrating Christmas with persons with whom he has positive relationships.
43Secondly, by the date of the review hearing (Dec 13, 2011), D.J.R.N. had already spent ten days in custody. However, my decision on the review was not made on that date. I adjourned the review for a further week until Dec 20, 2011 on which date I made my order. This meant that D.J.R.N. spent 17 days in custody as a result of his breach. I think that this additional time in custody is a sufficient consequence having regard to the breach.
44Finally, prior to the enactment of the YCJA, custodial sentences were not automatically divided in a 2/3 : 1/3 ratio of custody and community supervision. This change came about for a reason. It was evidently for a reason sufficient to warrant that this change be statutorily mandated. My understanding of the basis for the introduction of a period of community supervision was, among other things, to provide a time of transition from a custodial setting to a community setting, while maintaining close supervision, with consequences for going astray. In other words, to better prepare a young person to cope with the withdrawal of the structure and discipline of his or her custody setting. The Provincial Director’s position is for D.J.R.N. to remain in custody and then be released without this period of transition. I would prefer otherwise and believe that the YCJA reinforces this transition period.
45These Reasons follow after the fact mainly because time constraints prevented them from being available on Dec 20, 2011. I conveyed my order on this review orally on that date. It was to cancel the suspension of the Provincial Director and to restore the community supervision that applied to D.J.R.N., but subject to one change, namely, that he reside at the home of Ms L., the individual whom he had identified as willing to provide him a place of residence, or at such other place of residence as might be approved in advance by his supervisor.
Released: January 12, 2012
Signed: “Justice John Kukurin”
(a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, order that the young person continue to serve a portion of his or her youth sentence in the community, on the same or different conditions; or
(b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, make an order under subsection (2).
(n) make a custody and supervision order with respect to the young person, ordering that a period be served in custody and that a second period — which is one half as long as the first — be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the [*Criminal Code*](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order;
(b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until a review is conducted under section 108 and, if applicable, section 109.
(a) keep the peace and be of good behaviour;
(b) report to the provincial director and then be under the supervision of the provincial director;
(c) inform the provincial director immediately on being arrested or questioned by the police;
(d) report to the police, or any named individual, as instructed by the provincial director;
(e) advise the provincial director of the young person’s address of residence and report immediately to the provincial director any change
(i) in that address,
(ii) in the young person’s normal occupation, including employment, vocational or educational training and volunteer work,
(iii) in the young person’s family or financial situation, and
(iv) that may reasonably be expected to affect the young person’s ability to comply with the conditions of the sentence; and
(f) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized in writing by the provincial director for the purposes of the young person participating in a program specified in the authorization.
Other conditions
(2) The provincial director may set additional conditions that support and address the needs of the young person, promote the reintegration of the young person into the community and offer adequate protection to the public from the risk that the young person might otherwise present. The provincial director shall, in setting the conditions, take into account the needs of the young person, the most effective programs for the young person in order to maximize his or her chances for reintegration into the community, the nature of the offence and the ability of the young person to comply with the conditions.
(a) permit the young person to continue to serve a portion of his or her youth sentence in the community, on the same or different conditions; or
(b) if satisfied that the breach is a serious one that increases the risk to public safety, order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until a review is conducted.
(a) the cancellation of the suspension of the conditional supervision, and when the court does so, the court may vary the conditions of the conditional supervision or impose new conditions;
(b) in a case other than a deferred custody and supervision order made under paragraph 42(2)(p), the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving, that the court considers appropriate, and when the court does so, the court shall order that the young person remain in custody; or
(c) in the case of a deferred custody and supervision order made under paragraph 42(2)(p), that the young person serve the remainder of the order as if it were a custody and supervision order under paragraph 42(2)(n).
S. 103(2) On completion of a review under subsection (1), the youth justice court
(a) shall order that the young person continue to serve the remainder of the youth sentence the young person is then serving in the community, and when the court does so, the court may vary the existing conditions or impose new conditions; or
(b) shall, despite paragraph 42(2)(n) (custody and supervision order), order that the young person remain in custody for a period that does not exceed the remainder of the youth sentence the young person is then serving, if the youth justice court is satisfied that the breach of the conditions was serious.
Footnotes
- S. 103(1) When the case of a young person is referred to the youth justice court under section 108 (review by provincial director), the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard,
- S. 42(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
- It is a bit of a mystery how 40 days to be served in secure custody imposed on Nov 1, 2011 could result in his being released from custody on Nov 30, 2011. It must be the new math.
- The YCJA is somewhat confusing as to what section of this statute applies once the “case” is referred by the provincial director to the youth justice court. Both section 103(1) and section 109(1) appear to apply to such reviews and, though they have some similarities, they are not identical.
- S.108 Without delay after the remand to custody of a young person whose conditional supervision has been suspended under section 106, or without delay after being informed of the arrest of such a young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for a review under section 109.
- S.106. If the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition of an order made under subsection 105(1), the provincial director may, in writing, (a) suspend the conditional supervision; and
- S.105 (1) The provincial director of the province in which a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) has been imposed is held in custody or, if applicable, with respect to whom an order has been made under subsection 104(1) (continuation of custody), shall cause the young person to be brought before the youth justice court at least one month before the expiry of the custodial portion of the youth sentence. The court shall, after giving the young person an opportunity to be heard, by order, set the conditions of the young person’s conditional supervision.
- s.97. (1) Every youth sentence imposed under paragraph 42(2)(n) shall contain the following conditions, namely, that the young person, while serving the portion of the youth sentence under supervision in the community,
- See Footnote 5, supra
- S.102. (1) If the provincial director has reasonable grounds to believe that a young person has breached or is about to breach a condition to which he or she is subject under section 97 (conditions to be included in custody and supervision orders), the provincial director may, in writing,
- Compare the opening words of S.103.(1) “When the case of a young person is referred to the youth justice court under section 108...” with those of S.109. (1) “If the case of a young person is referred to the youth justice court under section 108....”
- The “nature of the contravention”, one of the criteria mentioned specifically in s.109(4) YCJA might include a consideration of seriousness or gravity. When a breach has already been committed, as in this case, the assessment of ‘seriousness’ is facilitated. Where a suspension of conditional supervision is based on a young person who is “about to breach” a condition, gauging the seriousness of such imminent breach could be much more difficult.
- This raises questions “What is the nature of this kind of review? Is the decision or action of the Provincial Director being reviewed? Or is it the sentence of the young person that is being reviewed? Is this an adversarial or inquisitorial proceeding? If adversarial, who are the adversaries? If the Provincial Director is adverse in interests to the young person, is his/her Progress Report meant to be partisan? What role does counsel for the crown have? Is the state represented by the Provincial Director, and the office of the Crown Attorney its counsel in this proceeding? Do either have to be given the ‘opportunity to be heard’ as does the young person? (Compare s. 103 and s.109 with s.94(19) reviews where multiple persons are entitled to “an opportunity to be heard”)
- Filed as Exhibit 3.
- This was a community supervision condition, namely, to attend school or seek and maintain employment.
- Young persons are not capable of being convicted or having convictions registered against them with respect to their youth sentences. They can certainly, however, commit offences, many of which are crimes described in the Criminal Code. Young offenders can be “found guilty” of these.
- S. 109(2) On completion of a review under subsection (1), the youth justice court shall order
- Which is not substantially different from what is required of the court under section 103(2).
- S.109(4) In making its decision under subsection (2), the court shall consider the length of time the young person has been subject to the order, whether the young person has previously contravened it, and the nature of the contravention, if any.
- See, for example, the Preamble to the YCJA which advocates for a reduction of over-reliance on incarceration for non violent young persons, the sentencing principle in S. 38(2)(d) YCJA, and the presumptions against custody in s.29(2) YCJA (bail) as well as in s.39(2) YCJA (alternatives to custody)
- The wording of s.109(1)(b) seems, on its face, fairly clear in directing that the youth justice court shall “...review the decision of the provincial director to suspend the conditional supervision...”
