This list highlights the most important changes made to the Youth Criminal Justice Act, 2001 (YCJA) under the Safe Streets and Communities Act, 2012 (SSCA).
1) The definition of “serious violent offence” is changed from a discretionary judicial determination to a list of five serious charges: first degree murder, second degree murder, attempt to commit murder, manslaughter, aggravated sexual assault. (Section 2)
2) The definition of “violent offence” is expanded to include activity that “[creates] a substantial likelihood of causing bodily harm.” This is significant because the court can lift the ban on the publication of the identity of the young offender, and/or order custody, only when the offence is classified as “violent.” (Section 2)
3) The declaration of principle is reworded to elevate the ‘protection of the public’ in the YCJA. The previous intention of the YCJA focused on preventing crime by addressing underlying circumstances, rehabilitation and meaningful consequences for the purpose of long-term protection of the public. (Section 3)
4) The diminished moral blameworthiness of young people has been added as the justification for having a separate youth criminal justice system. (Section 3)
5) The circumstances under which pre-trial detention can be ordered are expanded. Repealed presumption against detention, and there no longer needs to be a possibility of a custodial sentence to order pre-trial detention. BUT there is never a reverse onus – crown must always establish requirements for detention, and that no condittion or combination of conditions could satisfy the grounds. (Section 29)
6) Two sentencing principles are added: (i) denounce unlawful conduct; and (ii) deter young persons from committing offences. Deterrence is now a sentencing principle under the YCJA, directly overturning the SCC ruling in R. v. B.W.P. (Section 38)
7) Two of the four gateways that unlock the possibility of a custodial youth sentence are expanded: (i) violent offence definition has been expanded (see #2 above); and (ii) a pattern of guilt has been expanded to include extrajudiciial sanctions. (Section 39). Other two remain same: failed to comply and indictable offence with exceptional circumstances.
8) The reverse onus provisions are repealed: (i) previously the accused was required to justify why a publication ban should be implemented (Section 110); and (ii) the accused had to demonstrate why a youth sentence was appropriate as opposed to an adult sentence (Sections 62-63). This makes the legislation in line with the SCC ruling in R. v. D.B. where the reverse onus provisions were deemed unconstitutional.
9) Under no circumstances can a youth be placed in an adult prison. The former legislation allowed the judge limited discretion to place a youth in an adult prison. (Section 76)
10) Local police must now keep records of extrajudicial measures (warnings, cautions, referrals to programs). (Section 115)