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(a) a youth custody facility separate and
apart from any adult who is detained or held
in custody;
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(b) a provincial correctional facility for
adults; or
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(c) if the sentence is for two years or more,
a penitentiary.
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| When young
person subject
to adult
penalties
|
(2) The youth justice court that sentences a
young person under subsection (1) shall,
unless it is satisfied that to do so would not be
in the best interests of the young person or
would jeopardize the safety of others,
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(a) if the young person is under the age of
eighteen years at the time that he or she is
sentenced, order that he or she be placed in
a youth custody facility; and
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(b) if the young person is eighteen years old
or older at the time that he or she is
sentenced, order that he or she not be placed
in a youth custody facility and order that
any portion of the sentence be served in a
provincial correctional facility for adults or,
if the sentence is two years or more, in a
penitentiary.
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| Opportunity
to be heard
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(3) Before making an order under
subsection (1), the youth justice court shall
give the young person, a parent of the young
person, the Attorney General, the provincial
director and representatives of the provincial
and federal correctional systems an
opportunity to be heard.
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| Report
necessary
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(4) Before making an order under
subsection (1), the youth justice court shall
require that a report be prepared for the
purpose of assisting the court.
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| Appeals
|
(5) For the purposes of an appeal in
accordance with section 37, an order under
subsection (1) is part of the sentence.
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| Review
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(6) On application, the youth justice court
shall review the placement of a young person
under this section and, if satisfied that the
circumstances that resulted in the initial order
have changed materially, and after having
given the young person, a parent of the young
person, the Attorney General, the provincial
director and the representatives of the
provincial and federal correctional systems an
opportunity to be heard, the court may order
that the young person be placed in
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(a) a youth custody facility separate and
apart from any adult who is detained or held
in custody;
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(b) a provincial correctional facility for
adults; or
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(c) if the sentence is for two years or more,
a penitentiary.
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| Who may
make
application
|
(7) An application referred to in this section
may be made by the young person, one of the
young person's parents, the provincial
director, representatives of the provincial and
federal correctional systems and the Attorney
General, after the time for all appeals has
expired.
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| Notice
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(8) When an application referred to in this
section is made, the applicant shall cause a
notice of the application to be given to the
other persons referred to in subsection (7).
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| Limit - age
twenty
|
(9) No young person shall remain in a youth
custody facility under this section after the
young person attains the age of twenty years,
unless the youth justice court that makes the
order under subsection (1) or reviews the
placement under subsection (6) is satisfied
that remaining in the youth custody facility
would be in the best interests of the young
person and would not jeopardize the safety of
others.
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| Obligation to
inform -
parole
|
77. (1) When a young person is ordered to
serve a portion of a sentence in a youth
custody facility under paragraph 76(1)(a)
(placement when subject to adult sentence),
the provincial director shall inform the
appropriate parole board.
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| Applicability
of Corrections
and
Conditional
Release Act
|
(2) For greater certainty, Part II of the
Corrections and Conditional Release Act
applies, subject to section 78, with respect to
a young person who is the subject of an order
under subsection 76(1) (placement when
subject to adult sentence).
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| Appropriate
parole board
|
(3) The appropriate parole board for the
purposes of this section is
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(a) if subsection 112(1) of the Corrections
and Conditional Release Act would apply
with respect to the young person but for the
fact that the young person was ordered into
a youth custody facility, the parole board
mentioned in that subsection; and
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(b) in any other case, the National Parole
Board.
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| Release
entitlement
|
78. (1) For greater certainty, section 6 of the
Prisons and Reformatories Act applies to a
young person who is ordered to serve a portion
of a sentence in a youth custody facility under
paragraph 76(1)(a) (placement when subject
to adult sentence) only if section 743.1 (rules
respecting sentences of two or more years) of
the Criminal Code would direct that the young
person serve the sentence in a prison.
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| Release
entitlement
|
(2) For greater certainty, section 127 of the
Corrections and Conditional Release Act
applies to a young person who is ordered to
serve a portion of a sentence in a youth
custody facility under paragraph 76(1)(a)
(placement when subject to adult sentence)
only if section 743.1 (rules respecting
sentences of two or more years) of the
Criminal Code would direct that the young
person serve the sentence in a penitentiary.
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| If person
convicted
under another
Act
|
79. If a person who is serving all or a portion
of a sentence in a youth custody facility under
paragraph 76(1)(a) (placement when subject
to adult sentence) is sentenced to a term of
imprisonment under an Act of Parliament
other than this Act, the remainder of the
portion of the sentence being served in the
youth custody facility shall be served in a
provincial correctional facility for adults or a
penitentiary, in accordance with section 743.1
(rules respecting sentences of two or more
years) of the Criminal Code.
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| If person who
is serving a
sentence
under another
Act is
sentenced to
an adult
sentence
|
80. If a person who has been serving a
sentence of imprisonment under an Act of
Parliament other than this Act is sentenced to
an adult sentence of imprisonment under this
Act, the sentences shall be served in a
provincial correctional facility for adults or a
penitentiary, in accordance with section 743.1
(rules respecting sentences of two or more
years) of the Criminal Code.
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| Procedure for
application or
notice
|
81. An application or a notice to the court
under section 63, 64, 65 or 76 must be made
or given orally, in the presence of the other
party, or in writing with a copy served
personally on the other party.
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| Effect of
absolute
discharge or
termination of
youth
sentence
|
82. (1) Subject to section 12 (examination
as to previous convictions) of the Canada
Evidence Act, if a young person is found guilty
of an offence, and a youth justice court directs
under paragraph 42(2)(b) that the young
person be discharged absolutely, or the youth
sentence, or any disposition made under the
Young Offenders Act, chapter Y-1 of the
Revised Statutes of Canada, 1985, has ceased
to have effect, other than an order under
section 51 (mandatory prohibition order) of
this Act or section 20.1 (mandatory
prohibition order) of the Young Offenders Act,
the young person is deemed not to have been
found guilty or convicted of the offence
except that
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(a) the young person may plead autrefois
convict in respect of any subsequent charge
relating to the offence;
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(b) a youth justice court may consider the
finding of guilt in considering an
application under subsection 63(1)
(application for youth sentence) or 64(1)
(application for adult sentence);
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(c) any court or justice may consider the
finding of guilt in considering an
application for judicial interim release or in
considering what sentence to impose for
any offence; and
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(d) the National Parole Board or any
provincial parole board may consider the
finding of guilt in considering an
application for conditional release or
pardon.
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| Disqualificati
ons removed
|
(2) For greater certainty and without
restricting the generality of subsection (1), an
absolute discharge under paragraph 42(2)(b)
or the termination of the youth sentence or
disposition in respect of an offence for which
a young person is found guilty removes any
disqualification in respect of the offence to
which the young person is subject under any
Act of Parliament by reason of a finding of
guilt.
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| Applications
for
employment
|
(3) No application form for or relating to the
following shall contain any question that by its
terms requires the applicant to disclose that he
or she has been charged with or found guilty
of an offence in respect of which he or she has,
under this Act or the Young Offenders Act,
chapter Y-1 of the Revised Statutes of Canada,
1985, been discharged absolutely, or has
completed the youth sentence under this Act
or the disposition under the Young Offenders
Act:
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(a) employment in any department, as
defined in section 2 of the Financial
Administration Act;
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(b) employment by any Crown corporation,
as defined in section 83 of the Financial
Administration Act;
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(c) enrolment in the Canadian Forces; or
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(d) employment on or in connection with
the operation of any work, undertaking or
business that is within the legislative
authority of Parliament.
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| Finding of
guilt not a
previous
conviction
|
(4) A finding of guilt under this Act is not
a previous conviction for the purposes of any
offence under any Act of Parliament for which
a greater punishment is prescribed by reason
of previous convictions, except for
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(a) the purpose of establishing that an
offence is a presumptive offence within the
meaning of paragraph (b) of the definition
``presumptive offence'' in subsection 2(1);
or
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(b) the purpose of determining the adult
sentence to be imposed.
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| Purpose
|
83. (1) The purpose of the youth custody
and supervision system is to contribute to the
protection of society by
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(a) carrying out sentences imposed by
courts through the safe, fair and humane
custody and supervision of young persons;
and
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(b) assisting young persons to be
rehabilitated and reintegrated into the
community as law-abiding citizens, by
providing effective programs to young
persons in custody and while under
supervision in the community.
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| Principles to
be used
|
(2) In addition to the principles set out in
section 3, the following principles are to be
used in achieving that purpose:
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(a) that the least restrictive measures
consistent with the protection of the public,
of personnel working with young persons
and of young persons be used;
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(b) that young persons sentenced to custody
retain the rights of other young persons,
except the rights that are necessarily
removed or restricted as a consequence of a
sentence under this Act or another Act of
Parliament;
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(c) that the youth custody and supervision
system facilitate the involvement of the
families of young persons and members of
the public;
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(d) that custody and supervision decisions
be made in a forthright, fair and timely
manner, and that young persons have access
to an effective review procedure; and
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(e) that placements of young persons where
they are treated as adults not disadvantage
them with respect to their eligibility for and
conditions of release.
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| Young person
to be held
apart from
adults
|
84. Subject to subsection 30(3) (pre-trial
detention), paragraphs 76(1)(b) and (c)
(placement in adult facilities with adult
sentence) and sections 89 to 93 (placement in
adult facilities with youth sentence), a young
person who is committed to custody shall be
held separate and apart from any adult who is
detained or held in custody.
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| Levels of
custody
|
85. (1) In the youth custody and supervision
system in each province there must be at least
two levels of custody for young persons
distinguished by the degree of restraint of the
young persons in them.
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| Designation
of youth
custody
facilities
|
(2) Every youth custody facility in a
province that contains one or more levels of
custody shall be designated by
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(a) in the case of a youth custody facility
with only one level of custody, being the
level of custody with the least degree of
restraint of the young persons in it, the
lieutenant governor in council or his or her
delegate; and
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(b) in any other case, the lieutenant
governor in council.
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| Provincial
director to
specify
custody
level -
committal to
custody
|
(3) The provincial director shall, when a
young person is committed to custody under
paragraph 42(2)(n), (o), (q) or (r) or an order
is made under subsection 98(3), paragraph
103(2)(b), subsection 104(1) or paragraph
109(2)(b), determine the level of custody
appropriate for the young person, after having
taken into account the factors set out in
subsection (5).
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| Provincial
director to
specify
custody
level -
transfer
|
(4) The provincial director may determine
a different level of custody for the young
person when the provincial director is
satisfied that the needs of the young person
and the interests of society would be better
served by doing so, after having taken into
account the factors set out in subsection (5).
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| Factors
|
(5) The factors referred to in subsections (3)
and (4) are
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(a) that the appropriate level of custody for
the young person is the one that is the least
restrictive to the young person, having
regard to
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(i) the seriousness of the offence in
respect of which the young person was
committed to custody and the
circumstances in which that offence was
committed,
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(ii) the needs and circumstances of the
young person, including proximity to
family, school, employment and support
services,
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(iii) the safety of other young persons in
custody, and
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(iv) the interests of society;
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(b) that the level of custody should allow for
the best possible match of programs to the
young person's needs and behaviour,
having regard to the findings of any
assessment in respect of the young person;
and
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(c) the likelihood of escape.
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| Placement and
transfer at
appropriate
level
|
(6) After the provincial director has
determined the appropriate level of custody
for the young person under subsection (3) or
(4), the young person shall be placed in the
youth custody facility that contains that level
of custody specified by the provincial director.
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| Notice
|
(7) The provincial director shall cause a
notice in writing of a determination under
subsection (3) or (4) to be given to the young
person and a parent of the young person and
set out in that notice the reasons for it.
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| Procedural
safeguards
|
86. (1) The lieutenant governor in council
of a province shall ensure that procedures are
in place to ensure that the due process rights of
the young person are protected with respect to
a determination made under subsection 85(3)
or (4), including that the young person be
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(a) provided with any relevant information
to which the provincial director has access
in making the determination, subject to
subsection (2);
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(b) given the opportunity to be heard; and
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|
(c) informed of any right to a review under
section 87.
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| Withholding
of information
|
(2) Where the provincial director has
reasonable grounds to believe that providing
the information referred to in paragraph (1)(a)
would jeopardize the safety of any person or
the security of a facility, he or she may
authorize the withholding from the young
person of as much information as is strictly
necessary in order to protect such safety or
security.
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| Review
|
87. (1) A young person may apply for a
review under this section of a determination
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(a) under subsection 85(3) that would place
the young person in a facility at a level of
custody that has more than a minimal
degree of restraint; or
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|
(b) under subsection 85(4) that would
transfer a young person to a facility at a
level of custody with a higher degree of
restraint or increase the degree of restraint
of the young person in the facility.
|
|
| Procedural
safeguards
|
(2) The lieutenant governor in council of a
province shall ensure that procedures are in
place for the review under subsection (1),
including that
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(a) the review board that conducts the
review be independent;
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(b) the young person be provided with any
relevant information to which the review
board has access, subject to subsection (3);
and
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|
(c) the young person be given the
opportunity to be heard.
|
|
| Withholding
of information
|
(3) Where the review board has reasonable
grounds to believe that providing the
information referred to in paragraph (2)(b)
would jeopardize the safety of any person or
the security of a facility, it may authorize the
withholding from the young person of as much
information as is strictly necessary in order to
protect such safety or security.
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| Factors
|
(4) The review board shall take into account
the factors referred to in subsection 85(5) in
reviewing a determination.
|
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| Decision is
final
|
(5) A decision of the review board under
this section in respect of a particular
determination is final.
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