Chapter 8 BEING IN CONFLICT WITH THE LAW

Criminal Procedure in Brief

When a crime is committed, it is the job of the police and other law enforcement authorities to locate the person believed to be responsible. The offender will then be arrested and charged in court with the offence. If the accused admits that he or she committed the crime, the judge will, after carefully considering the facts of the case, decide on an appropriate sentence—that is, a penalty of some sort.

If, instead, the accused claims to be innocent, a trial will take place, during which either a judge alone or a judge and a jury of citizens will try the case. During the trial, they will listen to arguments, first from the Crown and then from the defence.¹ The Crown attorney (the government prosecutor) will try to prove that the defendant (the accused person) is guilty, and then the defendant—or, more likely, his or her lawyer—will try to show why he or she should be found innocent. In the end, the judge or the jury, if there is one, must reach a verdict—a decision one way or the other—about the defendant’s guilt. One very important principle is that someone accused of a crime is considered innocent until proven guilty. This means that, if there is any doubt about whether someone is guilty of the crime in question, the person should be found not guilty. If the verdict is “not guilty,” the accused is acquitted and is free to go. If the verdict is “guilty,” the accused is convicted of the crime, and the judge will decide on a sentence.

Both the Crown attorney and the defendant are allowed to appeal the verdict—that is, challenge it in a higher court—provided there are legal grounds for doing so. A verdict cannot be challenged simply because either the Crown attorney or the defendant is unhappy with it and would like a higher court to retry the case, in hopes of a different result. An appeal court will agree to review a lower court’s decision if that decision is wrong in law, in view of the evidence presented, if it appears that a “miscarriage of justice” occurred (for example, if one of the members of a jury was obviously biased), or if there were procedural errors. An “error of law” might be evidence not actually admissible in court or if a judge’s reasoning was based upon a wrong interpretation of a particular law (a situation in which the Crown is allowed to appeal a “not guilty” verdict). In the end, the court will either allow or dismiss—that is, accept or reject—the appeal. If the appeal is allowed, then, in most cases, the court simply will order a new trial (though in some cases it simply might acquit the accused).

Types of Crimes

According to section 718.1 of the Criminal Code, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” So, when it comes to sentencing, the Criminal Code usually specifies a range of options for particular offences, such as a fine of no more than a certain amount and/or a jail term of up to a certain number of years. While the specific options vary depending on the offence, in general terms, a sentence reflects the kind of crime that was committed. The Criminal Code divides crimes into three broad groups:

• Indictable offences: These are serious crimes, such as murder, manslaughter, robbery, treason, or acts of terrorism. Punishments can be very serious for indictable offences. In Canada, the harshest punishment—for crimes such as first-degree murder—is life imprisonment with no chance of parole (an early release, on certain conditions) for twenty-five years. If there is reason to believe that a criminal might pose a long-term danger to society, he or she may be declared a “dangerous offender,” in which case he or she could be sentenced to remain in prison for an unspecified period (perhaps even life).

• Summary offences: These are relatively minor crimes. An example is public nudity (Criminal Code, s. 174). There are certainly exceptions, but summary offences usually carry a punishment of no more than 18 months in jail, a maximum fine of $5,000, or both.

• Hybrid offences: These are crimes that can be tried either as indictable offences or as summary offences, depending on the choice of the prosecution (that is, the Crown). In making the decision, the prosecution will consider several factors, such as how serious the offence committed was and whether the offender has committed crimes in the past. Most of the crimes in the Criminal Code are hybrid offences; examples include assault with a weapon, possession of cocaine, and fraud involving less than $5,000. The penalty will depend on which way the offence is tried.

As we will see below, young offenders, compared with adults, generally are treated differently. In fact, even though much of the Criminal Code applies to youth as well as to adults, Canada (like many other countries) has a separate system for dealing with young people who commit crimes (see section 50 of the Youth Criminal Justice Act [YCJA]).

Youth Criminal Justice

In Canada, the Youth Criminal Justice Act (YCJA) is the main law that lays down the rules about what happens to young offenders. It became effective on 1 April 2003, to replace the Young Offenders Act, which itself replaced an even earlier law, the Juvenile Delinquents Act. Like its predecessors, the Youth Criminal Justice Act tries to strike a balance between two responses to youth crime that pull the law in different directions. On the one hand, because young people lack the maturity of adults, their judgment may be less perfect, so it would be wrong to punish them as harshly as adults. On the other hand, young people do need to learn to take responsibility for their actions, so it would be wrong not to punish them at all, be it restorative justice or another alternative to criminal sanctions.

When does the law make me criminally responsible?

In Canada today, the age of criminal responsibility is 12—higher than in some countries, and lower than in others. If someone under 12 commits a crime, he or she cannot be charged with it. He or she will not be put on trial and so cannot be found guilty (Criminal Code, s. 13).

A minimum age of 12 doesn’t mean that, if you commit a crime before you reach that age, nothing will happen. Chances are that your parents will punish you, and, depending on what you did, you might also be disciplined by your school or, for example, banned from a store in which you were caught shoplifting. In addition, child protection services could become involved, especially if you have committed a fairly serious crime. This comes under the definition of a child in need of protection. Criminal behaviour is very often a symptom of other problems, often having to do with psychological or emotional adjustment. So when a child does something seriously wrong, this could be a signal of problems in the child’s home environment or possibly evidence of a developmental disorder. If nothing else, such behaviour calls for a response of some sort.

This concern about the reasons that children commit crimes is reflected in certain provincial laws. For example, section 74(2) of Ontario’s Child, Youth and Family Services Act, 2017 contains a list of circumstances under which a child is considered to be “in need of protection.” Clause (l) deals with situations in which a child under 12 “has killed or seriously injured another person or caused serious damage to another person’s property” and “services or treatment are necessary to prevent a recurrence.” If, in such circumstances, the child’s parents or guardians fail to make arrangements for the necessary services or treatment (such as a psychiatric evaluation and possible counselling), the child is deemed to be in need of protection. As clause (m) goes on to say, a child under 12 is also in need of protection if he or she “has on more than one occasion injured another person or caused loss or damage to another person’s property,” either “with the encouragement of the person having charge of the child or because of that person’s failure or inability to supervise the child adequately.” As we saw in the previous chapter, a child in need of protection can be taken into protective custody, placed in a foster home, and given the care that social services consider necessary under the circumstances.

The Youth Criminal Justice Act defines a “young person” as someone aged 12 to 17. In other words, once you turn 12, you can be arrested and charged with a crime, and you will be dealt with in accordance with the rules and procedures laid out in the act. Once you turn 18, however, and you then commit a crime, you are an adult in the eyes of the criminal law, even in parts of Canada where the age of majority is 19.

Getting Arrested

According to section 495 of the Criminal Code, the police can arrest you if you are caught in the act of committing a criminal offence or if a police officer has reason to believe that you have committed an indictable offence or that you are about to do so.² If, however, the crime of which you are suspected is not an indictable offence under federal law, then, in order to arrest you, the police must first obtain a warrant (that is, a court document ordering that you be arrested)—unless the officer has reasonable grounds to believe that a warrant already exists for your arrest.

The police do not necessarily have to arrest a suspect. If they feel that an offence is too minor to be worth prosecuting, they can choose to take no further action, or they may let the culprit off with a milder penalty, such as a verbal warning or a more formal “caution” or “referral.” (These penalties are examples of “extrajudicial measures,” which we’ll discuss in more detail below.) There is absolutely no guarantee of this, however: if an offence has been committed, the police have the right to pursue prosecution.

What happens if I’m arrested?

When someone is arrested, the person is typically restrained by the police, handcuffed, and informed that he or she is under arrest. The suspect must then be told why he or she is being arrested (that is, what offence he or she is charged with) and that he or she has the right to consult with a lawyer. These basic rights are protected under section 10 of the Charter of Rights and Freedoms, according to which anyone who is arrested or detained has the right “to be informed promptly of the reasons therefor” and “to retain and instruct counsel without delay and to be informed of that right.” In addition, according to paragraph 146(2)(b) of the Youth Criminal Justice Act, young offenders must also be informed that they have the right to call their parents or, if no parent is available, another adult who could help them, and they must also be told that anything they say could be used in court as evidence. All this information must be given to you in language that you can readily understand.

If you are arrested and charged with a crime, one of two things will happen, depending on the seriousness of the offence:

• You may be taken to the police station and then released. In this case, you will be given an “appearance notice” ordering you to appear in court on a particular day for an initial hearing.

• You may be taken to the police station, where you will be booked—that is, your identity, the time of your arrest, and the reasons for your arrest will be recorded. Then you will be put in a cell. If this happens, you cannot be held for longer than twenty-four hours before being brought before a judge for a bail hearing (as we’ll describe below).

If I’m arrested, do the police have to tell my parents?

Yes. As soon as is reasonably possible, the police must inform the parents of a youth who has been arrested and detained. If they can’t locate at least one parent, they must inform an adult relative or other adult known to the youth who may be able to provide assistance. Also, if you’ve been given an appearance notice, the police must see to it that your parents (or other adult) receive a written copy of this notice. All this is spelled out in section 26 of the Youth Criminal Justice Act. If you are arrested in school, then it would be wise for the person in charge to contact your parents.

Will the police ask me questions?

Probably so—but apart from giving them your name, age, and address, you have the right not to tell them anything. As we noted above, prior to questioning you, the police have to let you know that any information you provide voluntarily can be used as evidence against you in court—but this includes any statements you make spontaneously at the time of your arrest, before the police have had time to inform you of your rights (YCJA, s. 146[3]). They must also tell you that you have the right to consult with a lawyer and then give you a reasonable opportunity to do so. However, the police may ask you to “waive” (that is, give up) your right to consult with a lawyer before answering questions; we strongly advise you not to do this. You should know that, when arresting a suspect, the police sometimes use quite aggressive methods in an effort to persuade the person to admit his or her guilt at the outset or to provide information that the police would like to have. Although the police are not supposed to do anything that is actually against the law, there have been cases where the police have used threats or even physical force in order to try to get someone to confess. Paragraph 146(2)(b) of the Youth Criminal Justice Act specifies that you have a right to have a lawyer present during questioning. If you waive your right to counsel, however, you no longer have this protection.

Do I need a lawyer?

We would say that you do. As mentioned above, at the time of your arrest, the police must inform you that you have the right to contact a lawyer (or, as the case may be, to ask your parents or some other adult to do so for you). You also have the right to be represented by a lawyer in court. If you or your family cannot pay for a lawyer, then, at your initial hearing, the court will either refer you to a legal aid program, if one exists in the province or territory in which you were arrested, or else, on your request, will put you in touch with a court-appointed lawyer (YCJA, s. 25).

If you are charged with a crime, it is very important that you have a lawyer, as he or she will understand court procedure and will know how best to defend you, as well as what steps you need to take at different points during the trial. Being charged with a crime carries serious consequences, and you need expert guidance to avoid pitfalls. Moreover, a lawyer can help you if you feel that the police were overly aggressive at the time of your arrest. According to section 24(2) of the Charter of Rights and Freedoms, if the evidence against you was obtained in a way that violated your rights (if, for example, the police stopped you on the street and searched you without a warrant), then that evidence may not be “admissible” in court: that is, it cannot be used. In addition, section 146 of the Youth Criminal Justice Act lays out specific rules concerning the admissibility of evidence obtained from a young person who has been arrested. A lawyer will know these rules and how they might be used to help you.

Although section 25(7) of the Youth Criminal Justice Act allows you to be represented by a responsible adult such as a parent, other family member, or friend, rather than by a lawyer, we do not recommend this. Unlike a lawyer, these adults will probably not have much familiarity with the law and with court procedure, nor will they necessarily understand the various options that the youth criminal justice system offers. Moreover, their emotional attachment to you as their child or family member may affect their judgment and make it hard for them to think like a lawyer when defending you, which could work to your disadvantage in the long run. Everyone who is charged with a crime should have a lawyer to defend them. There is simply no good reason not to request one.

Can I be released on bail, or will I be locked up?

As we mentioned above, if you are arrested and charged, you will either be given an appearance notice and released or else you will be detained until your bail hearing. In most cases, it’s the first, but there are some exceptions. According to section 498(1.1) of the Criminal Code (which applies to youth as well as adults), the police may detain you if they need to identify you (for example, if you refuse to give them your name), if they need you in order to preserve evidence relating to the offence, or if they think that, were you to be released, you might commit another offence or pose a danger to someone. They can also choose to detain you if they have reason to believe that, if they let you go, you would subsequently fail to show up in court on the appointed date.

If you are detained at the time of your arrest, a bail hearing must take place within twenty-four hours. At this hearing, the court will decide whether you can be released while you await your trial or whether you should remain in custody. The Crown attorney may argue that you should not be released on bail, in which case he or she will attempt to convince the judge that, if you are released, you are likely to commit another crime or that you will run away and not show up for your trial. (Your chances of getting bail are much less if you commit another crime while already out on bail.) In response, your lawyer will try to convince the judge that it is, in fact, safe to release you on bail.

If the judge or justice of the peace releases you, then you will be given a “bail form” to sign in which you promise to appear in court on the date of your trial. The judge may attach a list of certain conditions to your bail. These could include:

• that you or another person agree to pay a certain sum of money if you fail to appear for your trial;

• that you stay with your parents or another responsible person and obey their rules;

• that you stay away from certain people and/or places (usually ones that have some connection to your crime);

• that you refrain from drinking alcohol and using recreational drugs;

• that you attend school or show up for work; and/or

• that you remain where you are and not do any travelling.

If instead you are denied bail, then there must be a good reason for keeping you in custody prior to your trial. You may appeal any detention order. Section 39(5) of the Youth Criminal Justice Act specifies that you cannot be kept in detention unless you have been accused of a serious offence or else have a history of criminal behaviour. In addition, according to section 29(1), a judge cannot order the detention of a youth as a substitute for appropriate child protection, mental health treatment, or other social measures. In other words, you can’t be locked up for reasons that are not directly related to the crime of which you are accused.

Moreover, even if a youth could legally be kept in detention, a judge may choose to release the young person into the custody of a responsible adult (who could be a parent), provided the person “is willing and able to take care of and exercise control over the young person” and make sure that he or she appears in court on the scheduled date and provided the young person agrees to this arrangement (YCJA, s. 31). But a judge is not obliged to do this.

If I have to stay in custody, will I be put in an adult jail?

Section 30(3) of the Youth Criminal Justice Act states that a young person must be detained separately from adult prisoners. This makes good sense: a young offender should not be locked up with hardened criminals, who could have a corrupting influence and might even be dangerous. However, there is no guarantee that, if you must remain in custody, you will be placed in a facility designed specifically for young people. If no youth facility is available within a reasonable distance, you may be placed in an adult facility (although you should be housed separately from adults). A judge may also decide that, for reasons of your own safety or the safety of others, it would be best not to place you in a youth facility. In addition, as section 30(4) specifies, if you turn 18 while you are waiting for your case to be heard, a “provincial director” (an official responsible for administering the Youth Criminal Justice Act) can apply to the youth justice court to have you transferred to a correctional facility for adults.³ If this happens, then the court is required to hear your opinion before making a decision about the transfer.

If you do end up in detention, remember that you have certain rights in custody, such as the right to decent living conditions, the right not to be physically punished or otherwise mistreated, and, as mentioned above, the right to be separated from adult offenders. You also have the right to a reasonably speedy trial. If at any point you think that your rights are being violated, you should contact your lawyer.

Extrajudicial Measures

The Youth Criminal Justice Act allows the police or the Crown attorney an alternative to putting a young person on trial. Whenever possible, they are encouraged to offer a young offender “extrajudicial” measures, that is, penalties that do not involve the court system. As section 4 of the act indicates, especially when the offence in question did not involve violence, extrajudicial measures should be preferred as long as the police or the Crown attorney feel satisfied that such measures are adequate to hold a young person accountable for his or her actions. This approach spares a young person from having to be placed on trial and risking a conviction, a sentence, and a youth criminal record. (We’ll explain about criminal records later on.) In laying out this option, the act includes some of the principles of restorative justice, an approach that emphasizes the rehabilitation of offenders, as opposed to their punishment. Restorative justice stresses the need for offenders to acknowledge the harm they have caused, not only to their victim but to the community as a whole, and to take steps to mend broken relationships.⁴

The Youth Criminal Justice Act distinguishes two levels of extrajudicial measures. The first consists of warnings, cautions, and referrals, all of which are actions usually taken by the police. Whereas a warning is most often issued verbally, a “caution” (which can also come from the Crown attorney) is a more formal procedure and may include a letter from the police to your parents. In accordance with section 6(1), the police also have the option of a “referral”—that is, sending you to a community-based program or agency that helps youth learn to avoid crime, provided that you agree to this plan.

If these measures don’t seem adequate, another possible alternative to prosecution is a “sanction.” Extrajudicial sanctions (described in section 10 of the YCJA) are an option if the police or the Crown attorney thinks that such an approach would serve both your own needs and the interests of society. However, you must freely consent to the sanction, and you must also accept responsibility for the action that forms the basis of the offence of which you are accused.⁵ Sanctions cannot be used if you deny that you were involved in committing the offence or if you would prefer that the matter be dealt with in court.

Some of the more common sanctions are:

• performing a useful service in the community

• paying the victim for the damage you have caused

• writing a letter of apology to the victim

• participating in mediation with the victim

• participating in a remedial workshop

One possible problem is that, to be an option, sanctions must be part of a formal program of sanctions authorized for use in your province or territory. Moreover, whether this program is actually available in your community depends on the existence of a local youth justice committee. These committees, which are made up of community residents, help to administer the Youth Criminal Justice Act. Their work includes setting up programs or services for young offenders, facilitating mediation between an offender and the victim, and enlisting community support for extrajudicial approaches to youth crime. Unfortunately, though, such committees don’t exist everywhere.

Once you do whatever the extrajudicial sanction requires of you, you may be free from further responsibility under the law. If, however, you do not fulfill these obligations on time and as agreed, then the Crown attorney may bring your case back to youth court for a new hearing. In that situation, what happens will depend on whether the court feels that, under the circumstances, you’ve done a good enough job of completing the task you were set. If the court is not satisfied with your efforts to fulfill your responsibilities, it may order that you be placed on trial for the offence with which you’ve been charged.

If you participate in extrajudicial sanctions, then your parents will be informed, and the victim of your crime will be given your name as well as information about which measures were taken, if he or she asks to know (YCJA, ss. 11 and 12). Although there will be a record of your participation in extrajudicial sanctions, this record will be closed after two years.

Going to Court and Giving Evidence

Even though the Youth Criminal Justice Act does encourage measures designed to keep young people out of the judicial system, if you are charged with a crime, you may end up having to go to court, especially if you’ve committed a relatively serious offence and/or have a history of criminal behaviour. As you probably know, a courtroom is a very solemn and formal environment. It is necessary to be on your best behaviour at all times, to speak to the judge respectfully, and not to talk unless you are asked a question. Your lawyer will know how and when to speak on your behalf. You should wear clean, inoffensive clothes and avoid chewing gum. Also, headgear is not allowed in a courtroom unless it is worn for religious reasons.

According to section 14(1) of the Youth Criminal Justice Act, a young person must appear initially in a youth court (as opposed to an adult court) for any offence committed before he or she turns 18. It doesn’t matter whether you have withdrawn from parental control or been married: what counts here is your age. A youth court is much the same as an adult court, except that the press is not allowed inside, and normally trials are conducted by a judge alone, without a jury. Only a youth accused of murder or one for whom an adult sentence is sought may choose whether to be tried by a judge and jury or simply by a judge alone. The trial would be in the Superior or Supreme Court of most Provinces. Were you to find yourself in this situation, we would urge you to talk with your lawyer before making the choice: he or she will be able to advise you about which option is more likely to work to your advantage.

As mentioned above, when you are placed on trial, you will be asked in court whether you plead guilty or not guilty. If you are innocent, you should never plead guilty, since otherwise you will face punishment for something you have not done. Even if you know, or at least suspect, that you are guilty of the crime in question, you should always consult with your lawyer before entering a guilty plea. Also, according to paragraph 11(c) of the Charter of Rights and Freedoms, you cannot be forced to testify (that is, give evidence) at a trial in which you are the person accused, although nothing prohibits you from doing so. Whether it makes sense for you to testify depends on the case and is something else that you should discuss with your lawyer.

However, if you saw a crime being committed or were a victim of one, you may very well be called to testify at the trial of the person accused of the crime. In that case, you will receive a subpoena, a letter saying that you must come to court on a certain date to give your evidence. (If you fail to appear on the date specified, the police can get orders to arrest you and bring you to court.) At the trial, both the Crown attorney and the accused’s lawyer will ask you questions about what happened during the crime and about what you were doing there—that is, how you came to witness the events. They may ask very detailed questions, so, before you appear in court, try to remember as much as possible and make notes for yourself about what happened. Before you give your evidence, you will be asked to swear an oath to tell the truth, the whole truth, and nothing but the truth. If you don’t know the answer to a question that you are asked, you can simply say so—but if you lie while you are giving evidence, you commit a crime called perjury. This is a serious offence, punishable by up to 14 years in prison.

Testifying against someone can be scary, especially if you fear that the accused person may be angry and try to harm you in some way to take revenge. But it is your duty to give evidence. Refusing to do so makes you guilty of the crime called contempt of court, which, while not as serious as perjury, is punishable by up to 90 days in prison, a fine of $100, or both. Fortunately, according to section 13 of the Charter, evidence you give against someone else cannot subsequently be used against you in a different trial in which you are the one accused (unless you are on trial for perjury or for giving conflicting evidence).

Youth Sentences

If you are found guilty of an offence, then you will likely receive a youth sentence. (In some circumstances, youth can be given adult sentences, which we’ll explain in the next section). In choosing a sentence, judges must abide by certain principles, which are laid out in section 38 of the Youth Criminal Justice Act. The basic goal of youth sentencing is to rehabilitate young offenders—that is, to teach them a sense of responsibility for their actions and to help them learn to respect the rights of other people, so that they won’t continue to commit crimes. As a general rule, a judge must select the least severe sentence that seems capable of achieving this goal. In so doing, the judge must consider a number of different factors, including the nature of the offence, what prompted the young person to commit it, and whether he or she has a history of convictions.

The various possible youth sentences are listed in section 42(2) of the Youth Criminal Justice Act. While youth sentences are typically more lenient than adult sentences (and cannot be harsher than adult ones), some are more lenient than others. If a judge thinks that a relatively mild punishment will be enough to serve the basic goal of sentencing, your sentence is likely to consist of one or more of the following:

• A formal reprimand from the judge

• An absolute discharge. This means that, even though you have been found guilty, the judge decides not to punish you, and you are free to go. This decision has the effect of undoing your conviction, so you won’t have a criminal record. Although judges don’t hand out absolute discharges lightly, this could happen if you had been put on trial for a relatively minor offence and, in the opinion of the judge, a conviction would not be in your best interests and your release would not pose any danger to society.

• A conditional discharge. Unlike an absolute discharge, a conditional discharge is accompanied by an order requiring you to abide by certain conditions for a period of time. Again, because this is a discharge, you will not be convicted—unless you violate the conditions, in which case you will have to return to court for further sentencing.

• A fine, which cannot exceed $1,000

• An order to pay compensation to the person you have harmed or to return or replace property that you have stolen or damaged

• An order to perform a service for the person you have harmed. Performing this service cannot take more than 240 hours, nor can it overlap with your school or work hours, and it must be completed within twelve months.

• An order to perform a community service, such as helping out at a hospital, a nursing home, or a municipal department. In this case, you will be given a say in what kind of service you are assigned. Again, performing this service cannot interfere with your school or work hours, and it cannot exceed 240 hours over a period of a year.

• A prohibition order. Such an order prohibits you from possessing something connected to your crime—including, but not limited to, weapons or explosives—for a period of time. For some crimes, you must receive a prohibition order, and, in this case, it will apply for at least two years. (If you go to jail as well, the period of the prohibition order starts when you are released.)

A judge is free to impose some combination of these sentences, such as a fine and an order to perform community service. As you may have noticed, some of these punishments are not very different from extrajudicial sanctions. So, even if you are tried in court for your offence, your punishment might not be all that different—although, if you are found guilty and convicted, you will have a youth criminal record.

If, instead, a judge feels that one or more of the above measures will not be sufficient to hold you accountable for your crime and prevent you from committing further offences, he or she can choose to impose a heavier sentence. These penalties fall into two basic categories:

Probation. If you are put on probation, you will not be imprisoned, but for a period of time you will be supervised by the court. You will also be given a probation order specifying certain conditions that you must obey. At a minimum, you will be required not to get into any further trouble and to appear in court if and when requested (YCJA, s. 55[1]). In all likelihood, however, the judge will impose additional conditions. For example, a judge may require you to attend school or to find some form of employment; to remain within your province or territory; to notify the court if you change your address, your school, or your place of work; to live with your parents or another responsible adult and obey their house rules; and/or to not possess a weapon. In addition, a judge can impose any other conditions that he or she feels will promote good behaviour and help to prevent you from committing further offences (YCJA, s. 55[2]). So, for instance, a judge might order you not to associate with certain people or hang out in certain places or to avoid drinking alcohol or using drugs (except for medical reasons).⁶

A probation order requires your signature; before signing it, you should go over the conditions it imposes with your lawyer and make sure you understand them. Although a conditional discharge also comes with an order obliging you to adhere to certain conditions, probation differs in two important ways. First, it is not a discharge: it is a sentence that comes with a conviction. And, second, it entails considerably closer supervision. If you receive a conditional discharge, you might be ordered to check in periodically with an official (a “provincial director”) who works with the youth justice system. In the case of probation, however, a judge can assign you to a probation officer, who will monitor your behaviour and with whom you must meet on a regular basis.

Probation can last for up to two years, or up to three years if you have been found guilty of more than one crime. If you run into a problem that makes it hard for you to abide by the conditions of the probation order, you can ask the judge to change them (although you need a really good reason to make such a request). If you violate the conditions of probation, however, you commit an offence and may be punished for it as well as for your original offence.

Custody. If you have committed a violent offence or if you have committed a serious one and have a history of criminal behaviour or if you have failed to comply with the terms of a lesser sentence, a judge can issue a custody and supervision order. This sentence requires you to spend a specified period of time in a youth custody facility (that is, a jail for young people), followed by a period of “conditional supervision” within the community. As is clear from section 39 of the Youth Criminal Justice Act, a custody and supervision order is a sentence of last resort. A judge can issue such an order only if the court has carefully considered all the possible alternatives and is convinced that no other reasonable option exists. One such option is a deferred custody and supervision order, which a judge can issue if the offence you committed did not involve physical violence. In this case, you will not be put in jail if, during a period of up to six months, you are on good behaviour and abide by certain conditions, which will be spelled out in the order (see YCJA, ss. 105[2] and [3]). While these conditions are very similar to those that might appear in a probation order, if you break them, you could well end up in jail.

As we explained earlier, if you are sentenced to a term in jail and a youth facility is not available in your area, you can be placed in an adult jail, although you should be separated from adult offenders. A provincial director will decide whether you should be placed in a maximum security facility or whether less strict supervision would be enough. In making this decision, he or she must consider factors such as the seriousness of your crime, the likelihood that you will attempt to escape, the safety of the people with whom you are to be imprisoned, and your personal needs.

Unless you have committed a very serious offence (such as manslaughter or attempted murder), the total period you spend in custody and under supervision cannot be longer than two years, with two-thirds of that time being spent in custody and one-third under supervision. If, however, you are convicted of an offence for which an adult could be sentenced to life imprisonment, the total period can be extended to three years, of which two years would be spent in custody and one would be under supervision. Similarly, if you have committed more than one crime for which you are sentenced separately, the combined time of these sentences cannot usually exceed three years. But for first-degree murder, you can get up to ten years (with up to six in custody and four under supervision), and, for second-degree murder, you can get up to seven years (with up to four in custody and three under supervision.) In all these cases, the prosecution can ask the judge to require you to remain in custody for a longer period or even for the whole sentence, which could happen if there is reason to believe that there are things that make you violent and a threat to the community. Very serious offenders who have mental health issues may be sentenced to a special treatment program called “intensive rehabilitative custody.”

While you are in custody, your sentence must be reviewed by the youth court once a year. However, at any point, a provincial director can request that such a review be conducted, provided there are sufficient grounds for doing so (see YCJA, s. 94[6]), and you or your parents can also ask a provincial director to make such a request. It is therefore possible (although by no means guaranteed) that the period you must spend in custody could be shortened. After you are released from custody, you will spend the remainder of your sentence under supervision. During this period, you will be required to report in periodically to a provincial director and to abide by certain conditions, much like those in a probation order.

What if I’m convicted of a provincial offence not in the Criminal Code?

As a general rule, provincial (or territorial) summary offences are not as serious as federal crimes and tend to carry lesser penalties, typically fines, but sometimes also briefer periods of imprisonment in a correctional facility. Such convictions may not produce a criminal record, though the local police can choose to keep a record of them for certain purposes. There is no standard way in which provinces and territories treat young people, as opposed to adults, although Ontario’s Provincial Offences Act lays out some special provisions for youth over 12 but under 16. For example, according to section 97(1), if a youth is found guilty of a provincial offence, a judge may impose the same fine as for an adult, or the maximum fine for the offence, or a fine of $300, whichever is the least. Alternatively, the judge can put the young person on probation or else decide not to convict him or her at all and issue an absolute discharge. In addition, section 101(1) specifies that a youth cannot be imprisoned (except possibly for violating a probation order, and then for no more than thirty days) or fined more than $1,000.

Adult Sentences

If you are charged with an offence that you committed when you were at least 14 years old and for which an adult could be sentenced to more than two years in jail, then the prosecution can make an application to the youth court to have you given an adult sentence if you are found guilty. If the prosecution wishes to seek an adult sentence, you must be informed of this before you enter a plea or before the trial begins (see YCJA, s. 64). You must also be allowed to choose whether you want to be tried by a youth court judge without a jury and without a preliminary inquiry, or just by a judge without a jury, or by a judge and a jury (s. 67).⁷ You should discuss these options with your lawyer before making the choice.

Before the judge decides whether an adult sentence is appropriate, there must be a hearing at which you, your lawyer, and your parents can argue that you deserve a youth sentence (see YCJA, ss. 71 and 72). The fundamental assumption underlying the youth justice system is that, although young people do need to be held accountable for their behaviour, they are not yet mature enough to be able to fully comprehend the consequences of their actions and clearly distinguish right from wrong. So, before making a final decision about an adult sentence, the judge must consider whether this assumption still applies to you. At the hearing, it will be up to the prosecution to convince the judge that you actually did understand that what you were doing was wrong and that a relatively brief youth sentence would not be enough to hold you accountable for your crime. If the prosecution is successful, and the judge does decide to impose an adult sentence, you can appeal the decision.

If you are given an adult sentence, you will receive the same punishment that an adult would get under the Criminal Code, and the same conditions for parole will apply to your sentence. You can also be sent to an adult jail, such as a federal penitentiary, although it is more likely that you will be held at a youth facility until you turn 18 (and perhaps even longer, if the judge considers this to be in your best interests: your lawyer may be able to make a case for keeping you in a youth facility). Moreover, whereas the names of youth who are convicted of crimes cannot be made public, you lose this protection of your privacy if you are sentenced as an adult, and you will also have an adult criminal record.

Criminal Records

A criminal record is one of the many consequences of being convicted of a crime. These records are kept in a database by the RCMP and are available to the police and the government. Perhaps the biggest disadvantage of a criminal record (especially for an adult) is that many employers and other organizations ask job candidates or prospective volunteers to agree to a criminal record check—and if this check shows that the person has been convicted of a crime, the applicant will probably not be hired or even be allowed to volunteer. Not only can this make it very difficult for people who have served time in jail to find a job, but it also frustrates their efforts to become part of mainstream society again.

The good news for people who have an adult criminal record is that, after a certain period of time, it may be possible to seal the record. The Parole Board of Canada (PBC) grants “record suspensions” to people who can prove that they have become good citizens after serving their sentence. If you have an adult criminal record, you can apply to the PBC for a record suspension five years after completing a sentence for a summary offence or ten years after completing a sentence for an indictable offence. (Some very serious offences, however, such as sexual crimes involving a child, are usually not eligible for a record suspension.) If granted, a record suspension does not erase a criminal record, but it causes it to be separated from the main database, after which it will not normally appear on criminal record checks.

If I don’t get an adult sentence, will I still have a criminal record?

Yes, but youth criminal records are a little different. Unlike an adult record, a youth record does not usually stay open permanently—although there is a misconception that a youth record is automatically erased when you turn 18. Although a youth record is not open forever, the rules are more complex. They are set out mainly in section 119(2) of the YCJA and include the following main points:

• If you are found not guilty, your record will be closed two months after the end of the appeal period (assuming the Crown does not appeal your acquittal).

• If the charges are dismissed or withdrawn or if you are let off with a reprimand, the record will be closed after two months.

• If you are found guilty but get a discharge, the record will be closed one year after you were found guilty if it is an absolute discharge and three years after if it’s a conditional discharge.

• If you are convicted of a summary offence, the record will stay open for three years after you complete your sentence; if you are convicted of an indictable offence, it will stay open for five years.

• If you are 18 or older and commit another offence during the time in which your youth record is still open, that record will become part of your adult record and will never be closed unless a record suspension is granted.

• In addition to youth records, the RCMP keeps records of certain violent offences. In these records, an indictable offence may be listed for five years beyond the standard five-year period for indictable offences. In the case of a serious violent offence for which an adult sentence has been sought, that record can be kept open indefinitely (YCJA, s. 120[3]).

Once a youth record is closed, it will either be destroyed or archived for research purposes (in which case it will no longer identify you). For all intents and purposes, the law treats you as if you had never committed the crime. Your youth record will not appear on a criminal record check; its closure will happen automatically, and it will not be necessary to get a record suspension to seal it. In effect, you will be given the chance to start all over with a clean slate.

If you have an open record, one thing that you should be careful about is travelling to the United States. Both Canada and the United States have laws that give them the right to refuse entry to people from other countries who have a criminal record. The Canadian Police Information Centre (CPIC), which is operated by the RCMP, shares Canadian criminal record information with the National Crime Information Center in the United States, and US Customs and Border Protection has access to this information. If, when you try to cross the border, American border guards check the CPIC database and discover that you have an open criminal record, you can be arrested, detained at the border, and questioned. You will probably be sent back to Canada and told not to come to the United States again. Furthermore, if you are travelling by car (whether your own or someone else’s), that car can be confiscated.

Although the RCMP does not share information on youth records that have been closed, if you travelled even once to the United States with an open record, border authorities may have accessed your record (whether or not you were refused entry) and still have it on file. Once they have that information, they can deny you entry into the United States on a later visit, even if that visit occurs after Canadian authorities have closed your record (or have issued a record suspension, if you were sentenced as an adult).⁸ Unfortunately, because US authorities have access to the CPIC system, it is not entirely impossible that at some point they obtained records that contained information about your conviction (even if you didn’t attempt to cross the border). All in all, then, your best defence against possible future trouble is simply never to travel to the United States with an open criminal record.

Civil Liability

Besides criminal law, another area of law is a civil context, known as tort law. A tort is a wrongful act of some sort, generally one that involves personal injury or damage to someone’s property. Although tort law derives largely (though not entirely) from the common law tradition, many torts are in fact crimes. Simply put, if the cause of the injury or damage was a criminal offence, such as assault or arson, then the tort action is connected to crime. The difference comes in the purpose of taking legal action. Under criminal law, lawsuits are brought by the Crown, not by the victim of the crime, and the goal is to punish the offender. Tort law differs in that the focus falls on the person who has been wronged, on whose behalf the lawsuit is brought, and the goal is to gain some form of compensation, usually financial, for the injury or loss suffered.

So if you injure someone or damage another person’s property, you may or may not be charged with a crime, but the injured person may sue you—that is, take you to court and ask for damages (that is, compensation) for the wrong done. When the compensation awarded consists of a sum of money, the amount will depend on how much damage the court can be convinced was done. Ultimately, though, the amount of money that the injured person actually receives will depend on whether the guilty party is able to pay the full amount of the award. Since lawsuits are expensive, the standard wisdom is that it’s not worth suing someone who really doesn’t have much money.

When it comes to how much liability minors have for damages, the law is not very specific. According to common law, in order to be held responsible for damages, a child must have a certain minimum understanding of his or her actions, which children are presumed to lack prior to the age of about 6 or 7. As children grow older, courts are more likely to hold them responsible for their actions, but precisely how responsible depends on the situation. If you injure a person or someone’s property while you are doing some “adult” activity, such as driving or snowmobiling, a court may well assume that you are relatively mature and should therefore bear greater responsibility for what happened. All the same, if a lawsuit against a young person is successful, the youth might not have the money to pay the damages—although if the young person is able to pay, he or she must do so.

Are my parents responsible for damages I owe?

It depends. Under common law, parents are not automatically liable for damage their children have caused. They may be liable, however, if they didn’t prevent you from causing damage when they could reasonably have done so, or if they gave you a dangerous object (such as a gun) that could clearly cause harm, or if the damage happened because you were performing a task that they told you to do.

In addition to common law provisions, some provinces have passed statutes, such as Ontario’s Parental Responsibility Act, that give parents some liability for their children’s actions. For example, according to section 2 of that act, if a child under 18 takes, damages, or destroys property worth no more than $35,000 (the maximum amount that can be claimed in Small Claims Court), then the parents may be liable to pay for the damage and for any economic loss resulting from the damage. However, if they can convince the court that they were exercising a reasonable degree of supervision over the child at the time (or that someone they had designated was) and had taken reasonable steps to prevent the child from engaging in the activity that caused the damage, then they cannot be held liable. Nor are they liable if the action that caused the damage or loss was not intentional.

In other words, the law recognizes that, even when parents have done their best to teach their children right from wrong, young people sometimes do damage that their parents could not have foreseen or prevented. Under those circumstances, it wouldn’t really be fair to make parents pay for the damage, even if their own child was at fault.

As should go without saying, we hope you will never have need for the information we have presented in this chapter. Of course, everyone breaks the rules occasionally, but committing a crime is another matter. Even though the Youth Criminal Justice Act is not about retribution in dealing with young offenders (at least up to a point), there is no doubt that getting in trouble with the law—being arrested, appearing in court, and possibly having to endure a punishment—is a potentially traumatic experience, one that could have long-lasting consequences. It is also important to remember that your rights end where other people’s rights begin. When you knowingly commit a crime, you are basically saying that you don’t care about other people’s rights—which makes it hard to argue that you deserve to have your own rights respected. If, instead, you show that you understand why laws exist and are prepared to obey them, you will be in a stronger position to ask that youth be given more rights.