Criminal law

The sentence

What are non-custodial sentences?

A youth court judge has to weigh many objectives and principles when determining a sentence for an adolescent. These factors are explained in the Infosheet entitled Sentencing. As long as he respects the factors identified in the law, the judge does have some room to decide what measures to impose. It is up to the court to select the best course of action in a particular case.

The judge can impose a combination of several compatible measures for a single offence. Sentences can therefore vary from case to case. So it’s possible that a judge might impose sentences that look very different for two adolescents who were both found guilty of shoplifting, for example.

Besides the different forms of custody sentences, which can only be ordered as a last resort, the judge can impose measures that do not deprive a youth of her liberty. These include:

• A reprimand: A strict warning given to an adolescent. The judge can issue a reprimand when it is considered sufficient to hold the youth accountable for her actions;
  
• Absolute or conditional discharge: This type of measure is used when the judge considers that it is in the best interests of the adolescent and will not be detrimental to society. When the judge grants a discharge to a youth but imposes certain conditions, the discharge is considered to be conditional. A youth is “absolutely discharged” when the discharge does not have any conditions attached to it;
  
• A fine of up to $ 1000;
  
• Payment of an amount of money as compensation to the victim;
  
• An order to give back property to the rightful owner;
  
• Performance of volunteer work or community service as a symbolic way of giving back to society;
  
• A court order to follow an intensive support and supervision program with a view to helping the youth get the help she needs;
  
• An order of prohibition, seizure or forfeiture;
  
• Reimbursing a person who innocently purchased an item that was obtained as a result of the offence;
  
• An order to compensate any person in kind or by way of personal services for any loss, damage or injury suffered;
  
• An order to attend a non-residential program that offers rehabilitation or other support services: for example, a day center or detox center;
  
• A probation order, which is explained in further detail below.

Under what circumstances will a judge order that compensation be paid to the victim rather than imposing a fine?

In all criminal offences, there are two potential victims: the individual who directly suffers harm on the one hand, and society at large on the other.

When the victim of an offence is easy enough to identify, a judge can order the adolescent to pay a sum to compensate the victim for the damage suffered. The law encourages this approach whenever possible. In the above scenario, the homeowner presented a bill of $100 for the cost of repairing the broken window. So the court ordered Sabrina to pay compensation to cover this bill, since there was a specific amount claimed and she had the means to pay it.

When the offence does not have an identifiable victim or if there is no specific amount to reimburse, as might be the case for driving while impaired or drug possession, a fine might be considered. In fact, since society is also affected by Sabrina’s conduct, the judge could have just as easily ordered that she pay a fine. But if the adolescent can’t afford to compensate the victim and pay a fine, the judge will favour repaying the victim over the fine. For example, it would be unrealistic to order Sabrina to pay a $1000 fine as well as compensation of $100, since she only has a part-time job.

What is a probation order?

A probation order is a written order from the court containing strict conditions that the youth must follow. If she breaks any of the conditions, she risks facing charges for yet another offence: violating probation. The probation order may last for a maximum of two years. If it is accompanied by a custody and supervision order, the probation will come into force after the supervision ends. To find out more, see the Infosheet entitled Carrying out a custodial sentence.

All probation orders contain the following two conditions:

• To keep the peace and be of good behaviour;
  
• To appear before the youth court whenever required to do so.

The law provides that a judge can add any conditions he considers appropriate to ensure the good conduct of the young person and to avoid a repeat offence. One of the most important conditions imposed on an adolescent is the obligation to meet with a youth worker (a representative of the Provincial Director - in Quebec, the Director of Youth Protection) and to submit to the youth worker’s supervision.

In addition, the court can also forbid the youth from consuming alcohol, hanging out in certain places or with certain people, or contacting the victim or any witnesses. The court can also order that the youth attend some form of therapy, attend school, hold down a job, live with his parents, or reimburse the victim for her loss. The judge may also require the youth to inform him of any change in address, employment, or area of study or training.

Will the details of the probation order be explained to the youth?

Yes. When the judge gives the order, he has it read – or reads it himself – to the adolescent. He also explains the goal and effects of the order and ensures that the adolescent understands. The youth signs the order, and the clerk provides her with a copy. Her parents may also receive a copy of the document.

What role does the youth worker play in the probation order?

As explained above, one of the goals of the probation order, like any other sentence, is to help the adolescent to not re-offend. To achieve this objective, a judge may decide that supervision is necessary to ensure that the conditions are being respected while the adolescent is on probation. The youth worker, in her capacity as a specialist working with young people, takes on this supervisory role. On a weekly or monthly basis, the youth worker and adolescent meet face to face to discuss the youth’s situation. The youth worker ensures that the adolescent respects the conditions of the probation order.

The youth worker may inform the court of a violation of the probation order if need be. The adolescent is then at risk of finding herself back before the court to answer to new charges: namely, violating the terms of probation. So if the adolescent wants to avoid facing more charges, it’s important that she follow the conditions of the probation order.

Who is responsible for applying the probation order conditions which call for community service?

When a judge includes community service as a condition of the probation order, the youth is put in contact with a specialized organization that will oversee the performance of her work. This organization is called an organisme de justice alternative (OJA). Due to the links maintained between the OJA and various organizations that accept young volunteers, OJAs play an important role in ensuring proper follow-up.

In addition, administrators of the organization help the young person set a work schedule that will help her complete her service in accordance with the terms of the court order. The place where the adolescent will perform her community service is determined in light of her demonstrated skills and her availability (depending on school, work, etc.). The work might take place in a retirement home, group home, or community center. There are various possibilities.

At the end of the time limit set for the community service, the organization sends a report to the authorities, attesting to the successful (or failed) completion of the order.

Can a youth ask that certain aspects of the sentence imposed by the court be revised?

An adolescent’s circumstances may change from one day to the next. The law therefore allows a youth to request that her sentence be modified. However, there must be a good reason for doing so.

By way of example, if a young person was given a $300 fine and she lost her job in the weeks following the handing down of the sentence, the court might change the sentence to an order for community service, or grant an extension for the payment of the fine. The opposite may also apply if the young person suddenly landed a full-time job, rendering him less available to complete his community service. The review of a sentence often involves an extension in the period allotted for the payment of a fine or in a reduction in the number of hours ordered, in exchange for paying compensation to the victim.

What is important to keep in mind is that a judge’s decision is not written in stone. If the adolescent has legitimate reasons for requesting a change, the court will attempt to meet the law’s objectives by imposing a measure that is compatible with the adolescent’s new circumstances. However, one thing is for sure: a review of the sentence cannot, without the consent of the adolescent, make the new sentence more severe than the original one.