Framework: The Youth Criminal Justice Act
Youth criminal justice in Canada is governed by the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA), which replaced the Young Offenders Act in 2003. The YCJA applies to persons who are 12 years of age or older at the time of the alleged offence and have not yet reached their 18th birthday (s.2). Children under 12 cannot be charged under the YCJA; their conduct is addressed through child welfare and protective legislation.
The YCJA is federal legislation. Provincial and territorial governments administer youth justice services — youth custody facilities, youth probation, and extrajudicial sanctions programs — in Ontario through the Ministry of Children, Community and Social Services and the Ministry of the Attorney General.
Declaration of Principle: YCJA Section 3
The YCJA's declaration of principle in s.3 sets out the fundamental values that govern youth criminal justice:
- The youth criminal justice system must hold young persons accountable by imposing meaningful consequences, but accountability must be proportionate to the seriousness of the offence and the degree of the youth's responsibility.
- Rehabilitation and reintegration are primary objectives, along with long-term public protection.
- The rights and freedoms of young persons are to be respected, including the right to the least possible interference with freedom.
- Parents and families are to be involved in the process where appropriate.
- Victims should be treated with courtesy, compassion, and respect.
Extrajudicial Measures: YCJA Part 1 (Sections 4-12)
The YCJA strongly favours diversion from the formal court process for less serious offences. Section 4 confirms that extrajudicial measures are presumed adequate to hold first-time, non-violent young offenders accountable and that police and Crown counsel should consider them before proceeding to formal charges.
Police Extrajudicial Measures (s.6)
Police officers investigating a young person may, in lieu of laying a charge:
- Take no further action;
- Give a warning;
- Administer a formal caution, which is logged but involves no formal sanctions; or
- With the young person's consent, refer them to a community program or agency that may be of assistance.
Police have broad discretion in choosing among these options. In Ontario, police services have established formal youth diversion programs operating under YCJA s.6 authority.
Crown Cautions (s.8)
Crown counsel may administer a formal Crown caution to a young person in lieu of proceeding with a charge. The Crown caution is recorded and may be considered if the young person re-offends. Crown cautions are generally used where police extrajudicial measures have already been tried or are inappropriate given the offence.
Extrajudicial Sanctions (s.10)
Extrajudicial sanctions (EJS) are more structured diversion programs that may be imposed by a designated program administrator (not the court). To participate in EJS, the young person must: accept responsibility for the act; consent to participate; and be advised of their right to counsel before accepting responsibility.
An admission by a young person in connection with EJS is not admissible in evidence in any civil or criminal proceedings (s.10(4)). EJS programs in Ontario may involve community service, restitution to the victim, participation in counselling, or other constructive activities.
Youth Justice Court Jurisdiction
Youth justice court in Ontario has exclusive jurisdiction over offences allegedly committed by young persons (s.14). In Ontario, the Ontario Court of Justice (OCJ) serves as the youth justice court. Superior Court of Justice judges may conduct YCJA proceedings in certain circumstances, including adult sentence hearings.
Rights to Counsel
A young person has the right to retain and instruct counsel without delay upon arrest or detention (YCJA s.25; Charter s.10(b)). Section 25(4) creates an additional YCJA-specific right: where a young person does not retain counsel, the court must adjourn proceedings to give the young person an opportunity to obtain counsel, and the court may direct legal aid to be provided.
Legal Aid Ontario provides duty counsel and certificates for young persons facing serious YCJA charges. Defence counsel should advise young clients to invoke their right to counsel at the outset of any police contact.
Pre-Trial Detention: Section 29
The YCJA reinforces the detention-as-last-resort principle. Section 29(1) provides that pre-trial detention must not be used as a substitute for appropriate child protection, mental health, or other social measures. Section 29(2) further provides that a youth justice court judge shall not detain a young person in custody prior to sentencing unless:
- An adult charged with the same offence and in the same circumstances would be detained under Criminal Code s.515; and
- The detention is necessary for one of the grounds in s.515(10) — ensuring appearance, protection of the public, or maintaining public confidence in the administration of justice.
If detention is ordered, the young person must be placed in a youth facility, not an adult remand centre (s.30).
Youth Sentencing: Section 42
The sentencing principles for young persons under YCJA s.38 differ from adult sentencing. The youth sentence must be the least restrictive sentence that is capable of achieving the purpose of sentencing, which is to hold young persons accountable through proportionate sentences promoting rehabilitation and reintegration: s.38(1).
Available Youth Sentences
Section 42(2) sets out the available youth sentences in increasing order of severity:
- Reprimand: Verbal admonition by the court.
- Absolute discharge: No conditions attached; the young person is found guilty but discharged without penalty.
- Conditional discharge: Discharge conditional on compliance with probation conditions.
- Fine: Maximum $1,000 for any single offence.
- Community service: Up to 240 hours; to be completed within 12 months.
- Probation: Up to two years; conditions may include reporting, residence, curfew, and treatment.
- Intensive support and supervision program (ISSP) order:A non-custodial sentence with intensive community-based supervision.
- Deferred custody and supervision order (DCSO): An order that the young person serve the sentence in the community subject to conditions; failure to comply results in the young person serving the remainder in custody.
- Custody and supervision order (CSO): Custodial sentence served two-thirds in custody and one-third under conditional supervision in the community.
- Intensive rehabilitative custody and supervision order (IRCS):Available only where the young person is convicted of a presumptive offence or a serious violent offence and suffers from a mental illness or disorder, psychological disorder, or emotional disturbance. Intensive individualized treatment in a specialized custody facility.
Adult Sentences: Section 64
The Crown may apply for an adult sentence where a young person is 14 years of age or older at the time of the offence and is convicted of an offence for which an adult would be liable to imprisonment for more than two years (s.64(1)).
If the court imposes an adult sentence, the young person loses the YCJA publication ban protections (s.75) and the youth record regime (Part 6) ceases to apply. An adult sentence is a significant step and is reserved for the most serious youth offenders — typically those convicted of murder, manslaughter, aggravated assault, or major drug trafficking.
Publication Bans: Section 110
Section 110 of the YCJA establishes a presumptive publication ban on identifying information about young persons charged with or found guilty of offences. The publication ban may be lifted by the court in limited circumstances, including where the young person has received an adult sentence or where the young person is subject to a youth sentence and has been convicted of a violent offence and the information is necessary to protect the public (s.110(4)).
Youth Records: Part 6
Youth records are subject to strict access restrictions and automatic expiry under YCJA Part 6 (ss.114-129). After a period of time following completion of the sentence (the "record suspension" period, which varies from 2 years for summary convictions to 5 years for indictable offences), youth records are sealed and inaccessible. Youth records cannot be used to establish prior criminal record for adult sentencing purposes once sealed.
Practice Points for Ontario Youth Criminal Defence Lawyers
- Raise extrajudicial measures at the earliest opportunity — the YCJA creates a presumption that EJM are adequate for first-time, non-violent youth; Crown counsel should be invited to consider EJS before proceeding to trial.
- Always advise young clients to invoke the right to counsel at the outset of any police contact; statements made before consulting counsel are frequently challenged and may be excluded.
- Pre-sentence reports for youth carry significant weight; ensure the report accurately reflects the young person's background, family circumstances, and rehabilitative potential.
- For Indigenous youth, Gladue principles apply — prepare a Gladue report or ensure the pre-sentence report addresses the systemic factors underIpeelee.
- Monitor the youth record retention periods carefully — adult criminal record checks will not disclose sealed youth records, but the young person must understand that the record exists until the sealing period expires.