I recently had occasion to become involved in a matter involving a young person charged with one of the most serious offences under the Highway Traffic Act (HTA) of Ontario.  The HTA offence is tried in the Provincial Offences Court, which is subject to the Provincial Offences Act.

In my case the young person was under 18 at the time of the offence.  The penalty provisions of the HTA provided a maximum sentence of up to 2 years in jail, and although this was a first offence, the Prosecution was seeking a significant jail term.  The POA provides little or no specific guidance (or mandatory considerations) as regards the sentencing of a young person, a very different situation than is found in criminal law. 

This gap merits significant consideration when a young person is facing serious sanction under Provincial legislation.

For some time now, Parliament has chosen to deal with young offenders very differently than with adults, and accordingly, while all citizens are subject to the Criminal Code, for those who are under 18 at the time of the offence, the process, procedures and sentencing principles developed in the Youth Criminal Justice Act (YCJA) are unique and very specialized.  Unlike the POA, there is an entirely focused sentencing regime, one which is designed to foster rehabilitation and reintegration, rather than just to punish.  As outlined in the Act;

Youth Criminal Justice Act Principles

According to the YCJA, the following policy principles govern the Act:

Policy for Canada with respect to young persons

3 (1) The following principles apply in this Act:

(a) the youth criminal justice system is intended to protect the public by

(i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person,

(ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and

(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour;

(b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following:

(i) rehabilitation and reintegration,

(ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity,

(iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected,

(iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and

(v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time;

(c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should

(i) reinforce respect for societal values,

(ii) encourage the repair of harm done to victims and the community,

(iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and

(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and

(d) special considerations apply in respect of proceedings against young persons and, in particular,

(i) young persons have rights and freedoms in their own right, such as a right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms,

(ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as a result of their involvement with the youth criminal justice system,

(iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and

(iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour.

According to the YCJA, the overall purpose and principles of sentencing youth are as follows:

Purpose

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Sentencing principles

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

Factors to be considered

In determining a youth sentence, the youth justice court shall take into account:

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

Note that in 2(d) “all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

Accordingly, it is uncommon for young offenders to be sentenced to custody, and the spirit, intent and direction provided by the Act significantly mitigate away from custodial dispositions.

However as in my case, there are situations in which a young person runs afoul of Provincial legislation, and is subject to very serious sanction, yet the Provincial statute is silent on the treatment of young offenders with respect to sentencing. 

Accordingly, it was in the client’s interest to argue that the Provincial Offences Court, in which the HTA matter was being tried, should be bound by the YCJA principles, which when applied would likely mitigate significantly against the sentence sought by the Crown.  

A detailed review of the law results in the conclusion that the Provincial Offences Court is not bound by the sentencing principles found in the YCJA.  In the 2005 case of R. v. C.(K.)^[1], where a 15 year old pled guilty to probation order breaches under the POA, one of the questions that the court dealt with was how the Youth Criminal Justice Act applied to the youth convicted of offences under the POA. In following s.14(1) and s.2(1) of the YCJA noted above, the court emphasized:

“I am presiding as a justice of the Ontario Court of Justice, but not as a youth justice court judge, and I am hearing this case in a provincial offences court sitting. Any sentence I impose will not be a YCJA youth sentence, nor will it be subject to or restricted by any of the provisions in the YCJA.”

In my case the accused was 17 at the time of the offence.  Clearly, the statement by the presiding Justice that the Court was not bound, nor did it have to follow the YCJA is of great concern to young people facing serious charges under Provincial legislation.  The Court in R. v. C.(K.)^[2], went on to say;

“The Provincial Offences Act, in its Part IV, has rather rudimentary provisions for sentencing. It sets out no formal purposes or principles of sentencing. While it devotes Part VI to young persons, the provisions of Part VI are, for the most part, procedural in nature and provide little guidance for sentencing of young persons convicted of provincial offences. A sixteen year is not distinguishable from an adult so far as the sentencing provisions of the POA are concerned.

What then are the principles that the provincial offences court should apply in sentencing someone like K.C.?  The POA does not import into its sentencing scheme any of the provisions of the Criminal Code or of the YCJA.  In effect, the area of sentencing under the POA is quite open. It seems to me that there is nothing improper in picking and choosing anything found in the Criminal Code or in the YCJA that can be applied to a POA sentencing of a young person so as to come up with a reasonable sentence.

Since I don’t appear to be bound by any specific statutory sentencing provisions other than those few contained in the POA, I am tailoring my sentence to achieve the objectives that I have indicated are important to me and hopefully beneficial for K.C. These are punishment, specific deterrence, some measure of control longer than what a short, sharp sentence might accomplish, encouragement, and liberty to finish her academic classes, and most importantly, that she learn the lesson that she cannot simply disregard court orders with impunity.”[3]

Accordingly, great care must be taken to ensure that the Court is respectfully persuaded that the YCJA is an important and relevant consideration for any Justice imposing a sentence in POA Court. 

The danger is that absent mandatory application of the principles of the YCJA when it comes to sentencing a young person, the Trial Justice may not be inclined to focus on reintegration and rehabilitation.  Thus it is conceivable that a young person DOES NOT go to jail for a more serious criminal offence (by virtue of the YCJA), yet could find him or herself in jail for a less serious offence under a Provincial Statute such as the HTA. 

So if a young person is charged with a serious offence under any Provincial statute it is important to persuade a Justice, not otherwise bound, to accept that the YCJA principles should guide the Court in crafting the most just and proper sentence. This is a balancing act requiring careful consideration.

Having practiced criminal law as both an assistant crown attorney and defence counsel for almost 30 years, I am pleased to consult on these and other matters involving criminal and regulatory offences.  Strong advocacy is a must when defending any charges brought by State actors.   

[1] R. v. C.(K.), 2005 ONCJ 171 (CanLII)

[2] R. v. C.(K.), 2005 ONCJ 171 (CanLII)

[3] Ibid, para 21-22, 32.