Author: Scott Raycroft-Wright

You may know that a young person who is charged with a criminal offence in Canada is treated differently than an adult who is charged with that offence. There are, however, many myths and misconceptions about how Canada’s criminal justice system handles young people. In this post, I will address some of the ways in which young people differ from adults in the criminal justice system.

 What is a “young person”?

For the purposes of the criminal justice system, a young person is any person who is both 12 years of age or older and under the age of 18. The person’s age is measured as of the date of the alleged offence, so a person who is 18 or older can still be charged as a young person if the crime they are alleged to have committed occurred before they turned 18. This also means that an accused person will not lose their “young person” status if court proceedings continue past their 18th birthday.

A person under the age of 12 cannot be charged with a crime in Canada.

Which criminal laws apply to young people?

Young people are subject to the same criminal laws as everyone else, most notably the Criminal Code of Canada. If a young person is charged with an offence, the offence will be set out in the Criminal Code or, in certain circumstances, in other legislation such as the Controlled Drugs and Substances Act. The big difference for young people is that they are also subject to the Youth Criminal Justice Act (“YCJA”). The YCJA establishes special rights, procedures, and principles that apply only to young people. I’ll discuss some of those below!

Does a youth criminal record disappear when the youth turns 18?

No! Contrary to popular belief, a young person’s criminal record does not disappear as soon as they become an adult. The Youth Criminal Justice Act requires that a young person’s criminal record be sealed or destroyed automatically after a set amount of time, so there is no need to apply for a record suspension.

The length of time before a record is sealed or destroyed varies based on the type of offence and the outcome. For example, if a young person’s criminal charges are resolved by way of extrajudicial sanctions, their record will be sealed or destroyed two years after the sanction is imposed. If a young person is convicted and sentenced, their record will be sealed or destroyed three or five years after the sentence is complete, depending on whether the offence was summary or indictable.

What are extrajudicial sanctions?

Extrajudicial sanctions allow a young person to be held accountable for an offence without being convicted. Where extrajudicial sanctions are deemed appropriate, the young person may have their charges withdrawn upon successful completion of certain sanctions. Sanctions may include volunteer community service work, writing a letter of apology, and compensating the victim.

The young person must agree to the use of extrajudicial sanctions; unlike a probation order, a court cannot impose extrajudicial sanctions without the consent of the accused. If the young person does not consent to extrajudicial sanctions, or if the young person fails to successfully complete the sanctions, the charges will proceed through the usual court process.

Can a young person go to jail?

The Youth Criminal Justice Act requires courts to prioritize rehabilitation and reintegration when sentencing young people, so custodial sentences for young people are rare. A young person can be sentenced to custody, but not to the same type of facility that houses convicted adults.

There are two levels of custodial facility for young people: “open” and “secure.” Open facilities often resemble group homes and have minimal security. These facilities restrict liberties as little as possible, and allow young people supervised access to the community. Secure facilities are more restrictive of liberties and allow much less access to the community.

Courts typically prefer not to sentence young people to custody, and prefer open custody where a custodial sentence is necessary. Secure custody is generally reserved for young people who demonstrate that they are unable to comply with the rules of an open facility.

Can a young person be held for bail?

A young person can be held for bail when charged with a criminal offence, but only if all of the following conditions are met: (a) the accused is charged with a serious offence (an indictable offence with a maximum punishment of five or more years of imprisonment) or has a pattern of previous convictions; (b) the judge is satisfied that the accused is likely to not attend court, that detaining the accused is necessary for public safety, or that exceptional circumstances warrant detention; and (c) the judge is satisfied that no combination of release conditions would adequately address the judge’s concern on condition (b). All three of conditions (a), (b), and (c) must be met for a judge to detain a young person.

The Youth Criminal Justice Act also requires judges to consider the possibility of placing the young person in the care of a person who is willing and able to be responsible for that young person as an alternative to detention.

Is a young person entitled to a lawyer?

Yes! Like everyone else in Canada, young people have a constitutional right to retain legal counsel when charged with a criminal offence. The Youth Criminal Justice Act goes further by giving judges the power to order Legal Aid to provide a young person with a lawyer, even if that young person has already applied to Legal Aid and been denied.

If you or someone you know is a young person accused with a criminal offence, don’t hesitate to reach out to an experienced criminal lawyer. A lawyer can help with your release from custody, negotiate extrajudicial sanctions with prosecutors, and even help you to get a court order for a Legal Aid certificate.