Youth Sentencing, Custody and Supervision

When a youth aged 12 to 17 pleads guilty or is found guilty of a criminal offence, the youth justice court must determine an appropriate sentence. Under the Youth Criminal Justice Act (YCJA) youth sentencing provisions are different from those for adults.

Youth sentencing

The YCJA provides a wide range of sentencing options for youth found guilty of committing a criminal offence. The Act states the purpose of sentencing and sets out a series of principles to guide youth justice courts in determining fair and appropriate youth sentences.

What is the purpose of sentencing?

Youth sentences aim to hold youth accountable for their offending behaviour. This is done by imposing penalties that are fair, have meaningful consequences and promote a youth’s rehabilitation and reintegration into society. This contributes to public safety.

The courts may impose a sentence to denounce unlawful behavior or deter the youth from committing other offences.

What are sentencing principles?

A judge must consider sentencing principles of the YCJA when sentencing youth.

Youth sentences must be proportionate to the seriousness of the offence and the degree of responsibility of the youth for that offence. The sentence should fit the seriousness of the offence and reflect the level of maturity of the youth and the circumstances involving the offence committed.

Courts must consider the least restrictive sentencing option that would still be a meaningful response. The sentence must be the one that is most likely to rehabilitate and reintegrate the youth, promote a sense of responsibility, and encourage the youth to acknowledge the harm done to victims and the community.

A youth sentence cannot be a more serious punishment than what would be appropriate for an adult convicted of the same offence.

Courts must consider all alternatives or a combination of alternatives to custody that are reasonable under the circumstances. At the time of sentencing, the court must also give particular attention to the unique circumstances of Indigenous youth.

What are pre-sentencing reports?

Pre-sentencing reports have valuable information about the youth, their background, and circumstances, and can help with sentencing decisions. They can include Gladue reports (for Indigenous youth) or Impact of Race and Culture Assessments (for Black or other racialized youth). Medical or psychological reports can also be used to help with youth sentencing decisions.

Learn more about the use of Gladue reports and principles here: Applying R v Gladue: The use of Gladue reports and principles.

Learn more about Impact of Race and Culture Assessments here: Supporting Impact of Race and Culture Assessments.

What are aggravating and mitigating circumstances?

The court must consider “aggravating” and “mitigating” circumstances when sentencing a youth. An aggravating circumstance is something that could increase the severity of the sentence. A mitigating circumstance is something that could decrease the severity of the sentence. These can include:

• the degree to which the youth participated in the offence
• the harm done to victims
• steps taken to repair the harm done to victims or the community (referred to as “reparations”)
• time spent in detention
• previous findings of guilt

What are sentencing conditions?

A court may impose conditions a youth must follow as part of their sentence. These conditions help support the youth and manage risks to public safety. The conditions will depend on the type of sentence a youth receives. They can include:

• appearing in court when required
• reporting to a probation officer
• living at a specified address
• attending school
• not owning or possessing any weapons

The court can only set conditions that are necessary to meet the goals of sentencing and reasonable for the youth to follow. However, these conditions cannot be inconsistent with each other. Custody or sentencing conditions cannot be a replacement for child protection, mental health or other social measures.

Sentencing options

The YCJA sets out several sentencing options for youth found guilty of a criminal offence, including community-based sentences and custody and supervision orders.

What are community-based sentences?

A court can impose a community-based sentence on a youth. These types of sentences are served in the community and can include:

• a reprimand, which is a strong warning or lecture given by the judge
• absolute discharge, where no conditions are imposed
• conditional discharge, where conditions are imposed
• a fine less than $1000
• compensation (referred to as “restitution”) to the victim, such as returning or replacing property or paying for the damage caused
• prohibition order, such as prohibiting possession of firearms or other weapons
• personal or community service, which can involve volunteer work to assist a victim or the community  
• probation, where supervision and conditions may be imposed for a period of up to 2 years
• intensive support and supervision order (a type of probation) with close monitoring and additional support services
• an order to attend a non-residential program for up to 240 hours over a maximum period of 6 months, such as an education or counselling program

The court can add conditions for the youth to follow when imposing a community-based sentence.

What are custody and supervision orders?

For certain types of criminal offences, courts can sentence a youth to custody (referred to as a “custodial sentence”) if all alternatives to custody have been considered. A custodial sentence is typically followed by a period of conditional supervision in the community. Together, these are known as “custody and supervision orders”.  A court must state how much time must be served in custody and how much time must be served in the community.

A court cannot sentence a youth to custody unless specific criteria are met:

• the youth committed a violent offence
• the youth failed to comply with previous non-custodial sentences
• the youth committed an indictable offence for which an adult would serve more than 2 years imprisonment, and has a history of offending 
• the case and circumstances are exceptional, and a non-custodial sentence would not be consistent with the purpose and principles of sentencing

In all cases, a court must still consider whether there are any reasonable alternatives to custody.

There are two levels of custody a court can consider when sentencing a youth:

• open custody: a youth must live in a youth custody facility and is permitted to temporarily leave the facility for reasons such as rehabilitative programming, school, part-time employment, or volunteer work
• closed or secure custody: a youth must live in a more restrictive youth custody facility where rehabilitative programming and education are provided

What is a “deferred custody and supervision order?”

A court can impose a “deferred custody and supervision order” if a youth is found guilty of an offence that does not involve serious bodily harm of a victim. This means the youth will serve their sentence in the community under supervision, with strict conditions to follow. If the youth does not follow the conditions, they can be sent to serve the remainder of the sentence in custody. The maximum length of a deferred custody and supervision order is 6 months.

What is an “intensive rehabilitative custody and supervision order?”

A court can impose an “intensive rehabilitative custody and supervision order” for youth who have committed either serious violent offences or offences causing serious bodily harm, and who have a mental health issue or disorder, a psychological disorder or emotional disturbance. This type of sentence allows youth to receive intensive treatment and services while in custody and under conditional supervision in the community.

How long are custody and supervision orders?

The maximum duration of most sentences, including custody and supervision, cannot exceed 2 years. For serious offences the penalty can be higher. The YCJA requires a custody and supervision order for attempted murder, manslaughter and aggravated sexual assault. In these cases, the maximum sentence is 3 years. The Act also requires a custody and supervision order in the case of murder, where the maximum sentence is 7 years for second degree murder and 10 years for first degree murder.

If a youth breaches a condition while under supervision in the community, they may have to return to court, be placed in custody or have additional charges brought against them.

Youth custody and supervision system

The youth custody and supervision system contributes to public safety through court-imposed sentences that are safe, fair and humane for youth. The YCJA states that the system should assist the rehabilitation and reintegration of youth into communities, by providing effective programs while they are in custody and are supervised in the community. The Act also promotes youth rights and using the least restrictive measures for youth who are in custody, while protecting the public and those who work with them.

What is a youth custody facility?

Generally, youth serving a custody sentence are held separately and apart from adults. When a youth serving a custody sentence reaches the age of 18, the youth can be transferred to an adult correctional facility, if the court considers it to be in the best interests of the youth or in the public interest.

A youth serving a sentence in a youth custody facility who reaches the age of 20 must be transferred to an adult correctional facility to serve the remainder of the sentence, unless the provincial director orders differently. If a youth is placed in an adult correctional facility, the adult system applies to the youth. However, the youth may still benefit from some of the privacy protections under the YCJA.

What is reintegration?

The YCJA recognizes that youth who have been released from custody need assistance to successfully reintegrate back into the community. A youth worker supports youth with their reintegration by preparing and implementing a reintegration plan with the most effective programs. When a portion of a youth’s sentence is served in the community, the youth worker will supervise and support them and help them follow their sentence conditions.

A youth’s rehabilitation and reintegration back into the community can include “reintegration leave,” before being fully released from custody. Youth may be authorized to have reintegration leave for medical, compassionate, or humanitarian reasons. Youth may also receive reintegration leave to attend school, an out-patient program, or work.

What are adult sentences?

The YCJA allows a court to impose an adult sentence for youth in exceptional cases. The Crown prosecutor can give notice that they will seek an adult sentence if two conditions are met:

1. The youth is accused of an offence that, if committed by an adult, is punishable by more than 2 years of imprisonment, and
2. The offence was committed after the youth reached the age of 14.

When a court imposes an adult sentence, the Criminal Code penalties for adult offenders are applied to the youth who will no longer benefit from the enhanced privacy protections under the YCJA. They will still serve their custody sentence in a youth facility while they are under the age of 18.