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Bill C-37

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42-43-44 ELIZABETH II

CHAPTER 19

An Act to amend the Young Offenders Act and the Criminal Code

[Assented to 22th June, 1995]

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. Y-1; R.S., c. 27 (1st Supp.), c. 24 (2nd Supp.), c. 1 (3rd Supp.), c. 1 (4th Supp.); 1991, c. 43; 1992, cc. 1, 11, 47; 1993, cc. 28, 45

YOUNG OFFENDERS ACT

1. (1) Paragraph 3(1)(a) of the Young Offenders Act is replaced by the following:

    (a) crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future;

    (a.1) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults, young persons who commit offences should nonetheless bear responsibility for their contraventions;

(2) Subsection 3(1) of the Act is amended by adding the following after paragraph (c):

    (c.1) the protection of society, which is a primary objective of the criminal law applicable to youth, is best served by rehabilitation, wherever possible, of young persons who commit offences, and rehabilitation is best achieved by addressing the needs and circumstances of a young person that are relevant to the young person's offending behaviour;

2. Subsection 11(3) of the Act is amended by striking out the word ``or'' at the end of paragraph (c.1), by adding the word ``or'' at the end of paragraph (d) and by adding the following after paragraph (d):

    (e) at a review of the level of custody pursuant to subsection 28.1(1),

3. (1) Subsection 12(1) of the Act is replaced by the following:

Where young person appears

12. (1) A young person against whom an information is laid must first appear before a youth court judge or a justice, and the judge or justice shall

    (a) cause the information to be read to the young person;

    (b) where the young person is not represented by counsel, inform the young person of the right to be so represented; and

    (c) where the young person is a young person referred to in subsection 16(1.01), inform the young person that the young person will be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence unless an application is made to the youth court by the young person, the young person's counsel or the Attorney General or an agent of the Attorney General to have the young person proceeded against in the youth court and an order is made to that effect.

(2) Section 12 of the Act is amended by adding the following after subsection (3):

Idem

(3.1) Where a young person is a young person referred to in subsection 16(1.01) and is not represented in youth court by counsel, the youth court shall satisfy itself that the young person understands

    (a) the charge against the young person;

    (b) the consequences of being proceeded against in ordinary court; and

    (c) the young person's right to apply to be proceeded against in youth court.

(3) Section 12 of the Act is amended by adding the following after subsection (4):

Idem

(5) Where the youth court is not satisfied that a young person understands the matters referred to in subsection (3.1), the court shall direct that the young person be represented by counsel.

1991, c. 43, para. 35(a)

4. (1) Paragraph 13(1)(b) of the Act is replaced by the following:

    (b) on its own motion or on application of the young person or the prosecutor, where

      (i) the court has reasonable grounds to believe that the young person may be suffering from a physical or mental illness or disorder, a psychological disorder, an emotional disturbance, a learning disability or a mental disability,

      (ii) the young person's history indicates a pattern of repeated findings of guilt under this Act, or

      (iii) the young person is alleged to have committed an offence involving serious personal injury,

    and the court believes a medical, psychological or psychiatric report in respect of the young person is necessary for a purpose mentioned in paragraphs (2)(a) to (f),

(2) Subsection 13(2) of the Act is amended by striking out the word ``or'' at the end of paragraph (d), by adding the word ``or'' at the end of paragraph (e) and by adding the following after paragraph (e):

    (f) authorizing disclosure under subsection 38(1.5).

5. Subsection 13.1(2) of the Act is amended by striking out the word ``or'' at the end of paragraph (i), by adding the word ``or'' at the end of paragraph (j) and by adding the following after paragraph (j):

    (k) deciding an application for a disclosure order under subsection 38(1.5).

*ep

6. (1) Paragraph 14(2)(a) of the Act is replaced by the following:

    (a) the results of an interview with

      (i) the young person,

      (ii) where reasonably possible, the parents of the young person and,

      (iii) where appropriate and reasonably possible, members of the young person's extended family;

(2) Subparagraphs 14(2)(c)(v) and (vi) of the Act are replaced by the following:

      (v) the availability and appropriateness of community services and facilities for young persons and the willingness of the young person to avail himself or herself of those services or facilities,

      (vi) the relationship between the young person and the young person's parents and the degree of control and influence of the parents over the young person and, where appropriate and reasonably possible, the relationship between the young person and the young person's extended family and the degree of control and influence of the young person's extended family over the young person, and

(3) Subsection 14(2) of the Act is amended by striking out the word ``and'' at the end of paragraph (b), by adding the word ``and'' at the end of paragraph (c) and by adding the following after paragraph (c):

    (d) such information as the provincial director considers relevant, including any recommendation that the provincial director considers appropriate.

7. The heading before section 16 of the Act is replaced by the following:

TRANSFER

1992, c. 11, s. 2(1)

8. (1) Subsections 16(1) and (1.1) of the Act are replaced by the following:

Transfer to ordinary court

16. (1) Subject to subsection (1.01), at any time after an information is laid against a young person alleged to have, after attaining the age of fourteen years, committed an indictable offence other than an offence referred to in section 553 of the Criminal Code but prior to adjudication, a youth court shall, on application of the young person or the young person's counsel or the Attorney General or an agent of the Attorney General, determine, in accordance with subsection (1.1), whether the young person should be proceeded against in ordinary court.

Trial in ordinary court for certain offences

(1.01) Every young person against whom an information is laid who is alleged to have committed

    (a) first degree murder or second degree murder within the meaning of section 231 of the Criminal Code,

    (b) an offence under section 239 of the Criminal Code (attempt to commit murder),

    (c) an offence under section 232 or 234 of the Criminal Code (manslaughter), or

    (d) an offence under section 273 of the Criminal Code (aggravated sexual assault),

and who was sixteen or seventeen years of age at the time of the alleged commission of the offence shall be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence unless the youth court, on application by the young person, the young person's counsel or the Attorney General or an agent of the Attorney General, makes an order under subsection (1.04) or (1.05) or subparagraph (1.1)(a)(ii) that the young person should be proceeded against in youth court.

Making of application

(1.02) An application to the youth court under subsection (1.01) must be made orally, in the presence of the other party to the proceedings, or in writing, with a notice served on the other party to the proceedings.

Where application is opposed

(1.03) Where the other party to the proceedings referred to in subsection (1.02) files a notice of opposition to the application with the youth court within twenty-one days after the making of the oral application, or the service of the notice referred to in that subsection, as the case may be, the youth court shall, in accordance with subsection (1.1), determine whether the young person should be proceeded against in youth court.

Where application is unopposed

(1.04) Where the other party to the proceedings referred to in subsection (1.02) files a notice of non-opposition to the application with the youth court within the time referred to in subsection (1.03), the youth court shall order that the young person be proceeded against in youth court.

Deeming

(1.05) Where the other party to the proceedings referred to in subsection (1.02) does not file a notice referred to in subsection (1.03) or (1.04) within the time referred to in subsection (1.03), the youth court shall order that the young person be proceeded against in youth court.

Time may be extended

(1.06) The time referred to in subsections (1.03) to (1.05) may be extended by mutual agreement of the parties to the proceedings by filing a notice to that effect with the youth court.

Order

(1.1) In making the determination referred to in subsection (1) or (1.03), the youth court, after affording both parties and the parents of the young person an opportunity to be heard, shall consider the interest of society, which includes the objectives of affording protection to the public and rehabilitation of the young person, and determine whether those objectives can be reconciled by the youth being under the jurisdiction of the youth court, and

    (a) if the court is of the opinion that those objectives can be so reconciled, the court shall

      (i) in the case of an application under subsection (1), refuse to make an order that the young person be proceeded against in ordinary court, and

      (ii) in the case of an application under subsection (1.01), order that the young person be proceeded against in youth court; or

    (b) if the court is of the opinion that those objectives cannot be so reconciled, protection of the public shall be paramount and the court shall

      (i) in the case of an application under subsection (1), order that the young person be proceeded against in ordinary court in accordance with the law ordinarily applicable to an adult charged with the offence, and

      (ii) in the case of an application under subsection (1.01), refuse to make an order that the young person be proceeded against in youth court.

Onus

(1.11) Where an application is made under subsection (1) or (1.01), the onus of satisfying the youth court of the matters referred to in subsection (1.1) rests with the applicant.

(2) The portion of subsection 16(2) of the Act before paragraph (a) is replaced by the following:

Consideration s by youth court

(2) In making the determination referred to in subsection (1) or (1.03) in respect of a young person, a youth court shall take into account

(3) Subsection 16(3) of the Act is replaced by the following:

Pre-dispositio n reports

(3) In making the determination referred to in subsection (1) or (1.03) in respect of a young person, a youth court shall consider a pre-disposition report.

1992, c. 11, s. 2(3)

(4) Subsections 16(7) and (8) of the Act are replaced by the following:

Effect of order

(7) Where an order is made under this section pursuant to an application under subsection (1), proceedings under this Act shall be discontinued and the young person against whom the proceedings are taken shall be taken before the ordinary court.

Idem

(7.1) Where an order is made under this section pursuant to an application under subsection (1.01), the proceedings against the young person shall be in the youth court.

Jurisdiction of ordinary court limited

(8) Where a young person is proceeded against in ordinary court in respect of an offence by reason of

    (a) subsection (1.01), where no application is made under that subsection,

    (b) an order made under subparagraph (1.1)(b)(i), or

    (c) the refusal under subparagraph (1.1)(b)(ii) to make an order,

that court has jurisdiction only in respect of that offence or an offence included therein.

1992, c. 11, s. 2(3)

9. Subsections 16.1(1) and (2) of the Act are replaced by the following:

Detention pending trial - young person under eighteen

16.1 (1) Notwithstanding anything in this or any other Act of Parliament, where a young person who is under the age of eighteen is to be proceeded against in ordinary court by reason of

    (a) subsection 16(1.01), where no application is made under that subsection,

    (b) an order under subparagraph 16(1.1)(b)(i), or

    (c) the refusal under subparagraph 16(1.1)(b)(ii) to make an order,

and the young person is to be in custody pending the proceedings in that court, the young person shall be held separate and apart from any adult who is detained or held in custody unless the youth court is satisfied, on application, that the young person, having regard to the best interests of the young person and the safety of others, cannot be detained in a place of detention for young persons.

Detention pending trial - young person over eighteen

(2) Notwithstanding anything in this or any other Act of Parliament, where a young person who is over the age of eighteen is to be proceeded against in ordinary court by reason of

    (a) subsection 16(1.01), where no application is made under that subsection,

    (b) an order under subparagraph 16(1.1)(b)(i), or

    (c) the refusal under subparagraph 16(1.1)(b)(ii) to make an order,

and the young person is to be in custody pending the proceedings in that court, the young person shall be held in a place of detention for adults unless the youth court is satisfied, on application, that the young person, having regard to the best interests of the young person and the safety of others, should be detained in a place of custody for young persons.

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