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Thursday Thinkpiece: Sentencing in Canada–Essays in Law, Policy, and Practice

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Sentencing in Canada: Essays in Law, Policy, and Practice

Editors: David Cole & Julian Roberts
ISBN: Print (Paperback): 9781552215395
Publisher: Irwin Law
Page Count: 498 pages
Publication Date: August 24, 2020
Regular Price: $75.00

Excerpt from Chapter 16: Evaluating the Youth Sentencing Regime in Comparison with Adult Court, by Andrea EE Tuck-Jackson (p 320–31, citations omitted)

 B. PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING

The purpose of both the youth and adult sentencing regimes is the protection of the public. However, the means by which that purpose is fulfilled differs between the two regimes. That difference is evident in the way in which the legislators have framed the purpose of sentencing within each regime.

Section 38(1) of the YCJA provides that the purpose of a youth sentence is to hold a young person accountable for their offence. This purpose is achieved through the imposition of just sanctions that have meaningful consequences for the young person and promote their rehabilitation and reintegration into society. Taken together, this con­tributes to the long-term protection of the public. The young person and their criminogenic risk factors serve as the focal point of the purpose. In contrast, section 718 of the Criminal Code provides that the purpose of an adult sentence is to protect society, contribute to respect for the law, and contribute to the maintenance of a just, peaceful, and safe society. This purpose is achieved through the imposition of just sanc­tions that have one or more of the sentencing objectives outlined in the Criminal Code, sections 718(a)–(f). The purpose’s focal point is society; it does not emphasize the offender’s rehabilitative needs.

A comparison of available sentencing objectives within each of the two regimes is set out in Table 16.1:

Of note, the objective of general deterrence plays no role within the youth sentencing regime. As a result, a young person cannot be sentenced as an example for other potential offenders. The objective of separation also has no application. These objectives frequently under­lie the imposition of custodial sentences in the adult context. Their omission within the YCJA is consistent with the Act’s emphasis on rehabilitation and de-emphasis on custodial sanctions.

The codified sentencing principles that guide a court in its assess­ment of the appropriate sentence within each regime share certain common features: courts in all cases must be guided by the principles of parity and restraint, and sanctions other than custody must be considered. This makes sense as these principles transcend the age of the person before the court. There are, however, several noteworthy distinctions.

Under the YCJA, the previous imposition of a particular non-cus­todial sanction does not preclude a court from imposing the same or any other non-custodial sentence for a subsequent offence. This state­ment of principle expands the “jump” principle, which, at common law, holds that successive sentences imposed on an adult offender should be increased gradually rather than by “jumps.” This represents another example of how the YCJA de-emphasizes resort to custodial sentences. In contrast with the Criminal Code, the YCJA also expressly refers to the principle of individualized sentencing. Within the Declaration of Prin­ciple, the YCJA requires that, subject to the application of the principle of proportionality, measures taken against young persons be meaningful for the individual young person given their needs and level of develop­ment; respect gender, ethnic, cultural, and linguistic differences; and respond to the needs of persons with special requirements. Finally, the Criminal Code contains a statement of the totality principle: where con­secutive sentences are imposed on an adult offender, the combined sen­tence should not be unduly long or harsh. The YCJA contains no such statement. However, as discussed in Section C, limits that the YCJA imposes on the permissible length of an overall sentence operate as a constructive statement of the totality principle.

C. SENTENCING OPTIONS

A sentence for an offence is composed of one or more sanctions. A period of probation, imprisonment, a fine, and any combination of ancillary orders exemplify the most common sanctions imposed within both the youth and adult regimes.

The YCJA imposes limits on the length of an overall sentence for a single offence. Generally speaking, a sentence for a single offence, whether composed of one or more sanctions, cannot exceed two years in duration. Exceptions to this rule arise where the Act speci­fies that a particular sanction may exceed two years in duration. The combined duration of sentences imposed at the same time for more than one offence, regardless of whether each sentence is composed of one or more sanctions, cannot exceed three years. The same excep­tions noted earlier apply. Of note, and with the exception of stand-alone weapons prohibitions, the available duration of a sanction is independent of whether the offence is punishable by summary convic­tion or indictment.

Within the adult regime, the Criminal Code does restrict the dur­ation of various sanctions, including imprisonment, probation, and ancillary orders. The available duration of certain sanctions, including imprisonment, is tied to what an offence self-demarcates as its upper limit and whether the offence is punishable by summary conviction or indictment. However, the Criminal Code does not place any general­ized restriction on the available duration of an overall sentence.

In general terms, there is considerable similarity across the youth and adult sentencing regimes with respect to the nature of available sanctions. In addition, each regime prohibits certain combinations of sanctions, though admittedly not the same combinations. Further­more, within each regime, the nature of the offence, or a category of behaviour, sometimes drives the unavailability of a particular sanction. There are, however, five noteworthy differences between each regime that (1) affect the breadth of available sanctions for a given offence, (2) have an impact on the timeliness of sentencing proceedings, and (3) affect the number of factual distractions that shift the focus of the sentencing proceeding away from the gravity of the offence and the offender’s degree of moral blameworthiness.

1) Five Key Differences Between Youth and Adult Sentencing Regimes

First, under the YCJA, and in contrast to the adult sentencing regime, no offence carries a mandatory minimum punishment. Furthermore, there is no requirement that the sanction for one offence — often one that, itself, attracts a mandatory minimum penalty in the adult context — be served consecutively to a sanction imposed for another offence. The absence of mandatory minimum sanctions has a note­worthy impact on the sentencing process. It injects greater discretion within the sentencing process and better advances the principle of indi­vidualized sentencing. In the face of factual and legal guilt, it encour­ages guilty pleas. The resolution of a case by way of a guilty plea in these circumstances can result in shorter periods of pre-sentence cus­tody, thereby hastening the subject’s transfer out of detention facilities, which, for a host of reasons, are less able to offer in-depth rehabilitative programs. As the court regards a guilty plea as a significant mitigating factor on sentence, it effectively opens up a wider range of appropriate sentences for the court’s consideration.

Second, under the YCJA, the duration of a period of imprisonment imposed for an offence does not, per se, drive the availability of a per­iod of probation for the same offence. In contrast, under the Criminal Code, section 731(1)(b), a period of probation may be combined with a period of imprisonment only where the period of imprisonment does not exceed two years. The absence of any restriction as to the avail­ability of probation in this context under the YCJA circumvents the temptation to seek and/or impose a disproportionately lenient period of custody in order to ensure that the sentence may, in law, include a period of probation. In the result, the overall sentence, and each sanction, will be fit. (A sentence that combines custody and probation is effective. It can support the subject’s gradual reintegration into the community, and it extends the period of protection for victims as the subject adjusts to fewer restrictions on their liberty.)

Third, the consideration of collateral consequences of sentencing figures less prominently within the youth sentencing regime than in its adult counterpart. In R v Suter, the Supreme Court of Canada explained collateral consequences in the context of sentencing as follows:

a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sen­tence imposed for an offence, that impacts the offender.

In the adult regime, the imposition of a particular sanction can give rise to multiple and far-reaching consequences for the offender. The imposition of a conviction, as distinguished from a discharge, can adversely affect an offender’s employment prospects, ability to cross an international border, or the timing of when access to the entry on their criminal record is curtailed under the Criminal Records Act. Where the offender has a youth court record, the imposition of a conviction can also affect whether they lose the protection of part 6 of the YCJA, which governs access to such sensitive information. Of note, under the YCJA, no youth sentence results in a “conviction.” As a result, the conviction versus discharge debate does not arise in youth sentencing proceedings.

Fourth, under the YCJA, and separate from the principle of restraint, there exists a presumption against the imposition of a custodial sen­tence. This presumption manifests itself in two ways. The court cannot commit a young person to custody sentence unless one of the gate­ways to custody listed under section 39(1) of the YCJA is open. These gateways focus on the circumstances of the offence before the court for sentencing and/or the circumstances of the young person’s past criminal conduct. They do not touch on the young person’s personal circum­stances. In addition, where any of the gateways prescribed in the YCJA, sections 39(1)(a), (b), and(c), are open, the court shall not commit the young person unless it has considered all alternatives to custody raised at the sentencing hearing that are reasonable in the circumstances and determined that there is not a reasonable alternative, or combination of alternatives, that is in accordance with the purpose and principles set out in section 38 of the YCJA. No such statutory presumption exists within the adult regime under the Criminal Code. The existence of this presumption serves as a compelling reminder for the parties and the court of the principle of restraint. It also, effectively, imports the ladder principle from the bail context into its sentencing counterpart. Finally, it operates to encourage active consideration of meaningful and creative alternatives to custody.

2) Sanctions Unique to the YCJA

Although space does not permit a detailed comparison of the various sanctions available across the two regimes, certain sanctions unique to the YCJA bear mentioning.

a) Non-custodial Sanctions

The sanction of probation is common to both the youth and adult sentencing regimes; however, the YCJA creates two sanctions that are drafted within the Act as stand-alone orders but are frequently imple­mented as a condition to a probation order. Neither sanction is avail­able to a court sentencing an adult offender.

The first sanction is the Attendance Order. It requires that the young person attend a non-residential location for a specified num­ber of hours. It can be tailored so as to require the young person’s attendance on specific days and at specific times so as to occupy them with productive, rehabilitative programs during a set of hours when the young person is otherwise vulnerable to engaging in criminal or other anti-social activities. It also enables the young person to access a variety of counselling and rehabilitative programs in one location at regular intervals.

The second sanction is an intensive support and supervision pro­gram order. In practice, it is imposed in those cases where a young person faces mental health challenges and, but for the availability of the sanction, would, in all likelihood, receive a custodial sanction. It provides closer monitoring and more support for the young person in the areas of mental health counselling and treatment, education (including appropriate school placement), and job skill development. A mental health agency implements the program under the supervision of the young person’s probation officer.

b) Custodial Sanctions

The sanction of imprisonment is common to both the youth and adult sentencing regimes. However, there are key differences between the sanction of traditional imprisonment under the YCJA and its counter­part under the Criminal Code. The YCJA directs that every custodial sanction must include both a period of custody to be served in a cus­todial facility and a period of community-based supervision. There are three forms that a custodial sanction may take under the YCJA.

A custody and community supervision order is structured in such a way that the first two-thirds of the sanction are served in a custodial setting and the final third is served out of custody, subject to commun­ity supervision. Community supervision is composed of mandatory conditions, together with optional conditions. The young person’s probation officer stipulates the latter.

A custody and conditional supervision order differs from a custody and community supervision order to the extent that it is available only in respect of certain very serious offences, and the court, not the Act, determines the portion of the sentence to be served in a custodial facility, together with what remaining portion will be served in the community, subject to conditional supervision. Conditional supervision is com­posed of mandatory conditions, together with optional conditions. Of note, the sentencing court, as distinguished from the probation officer or an administrative tribunal such as a parole board, sets the optional conditions, and does so, with the benefit of the submissions of counsel, at a time just prior to the young person’s release into the community on conditional supervision. In the result, the sentencing court can craft the terms of conditional supervision in response to the progress that the young person has demonstrated while in custody.

The third custodial sanction under the YCJA is the intensive rehabili­tative custody and conditional supervision order. It is available for young persons with a mental illness or disorder, a psychological disor­der, or an emotional disturbance who have committed an enumerated violent offence.53 Its structure mirrors that of a custody and conditional sentence order but involves intensive treatment while in custody to address the young person’s mental health needs.

In respect of the portion of a custodial sanction that is to be served in a custodial facility, the YCJA permits the sentencing court to assign the level or levels of custody subject to which this allotment of the sanc­tion will be spent. There are two levels of custody: open and secure.

Open custody is akin to a group home environment. Secure (or closed) custody is akin to a correctional facility within the adult regime. These choices support a more refined approach to identifying a proportionate response to an offence. In addition, it is open to the court to combine the levels of custody within the custody and supervision order sanction. That is to say, the court could impose a twelve-month custody and community supervision order where the first six months are served in a secure custody setting, the next two months are served in an open custody setting, and the final four months are served in the commun­ity, subject to terms of community supervision. This approach to the structuring of a custodial sentence supports a gradual and controlled reintegration of the subject into the community.

Whereas the YCJA creates three forms of custody that are designed to respond to different categories of young persons, the Criminal Code creates only one. Furthermore, the Criminal Code does not stipulate that the adult sanction of imprisonment be divided in such a man­ner that it be served in two distinct settings. Instead, the timing of an offender’s return to the community, together with the conditions of release under which that return takes place, are determined by the provisions of such statutes as the Prison and Reformatories Act, the Corrections and Conditional Release Act, any relevant piece of provin­cial legislation, or the relevant parole board acting under the author­ity of these statutes. Of note, the sentencing court plays virtually no role in setting the conditions of release. In addition, within the adult regime, the court plays no role in tailoring the level or levels of cus­tody for a sanction of imprisonment. Indeed, no such choice is avail­able at the time a sanction of imprisonment is imposed. Instead, this role is assumed by the correctional authorities, who assign the offender a security classification once the offender leaves the courtroom and arrives at a correctional facility.

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