Sentencing Under the Youth Criminal Justice Act: Part 2

PUBLISHED ON January 15, 2025

As previously stated, a young person’s sentence is often much less than that of an adult convicted for the same offence. The justification for this can be found in the Youth Criminal Justice Act. Part 1 of this series addressed general principles relating to the youth criminal justice system. This article reproduces section 38 of the Youth Criminal Justice Act, which addresses the purpose and principles of youth sentencing. These principles guide judges when choosing the appropriate sentence in each case.

Section 38(1): Purpose of Sentencing

Section 38(1) of the Youth Criminal Justice Act holds that the purpose of sentencing in youth court 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.

Section 38(2): Principles

Section 38(2) holds that 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 (see the last article) and the following principles:

• 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;
• 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;
• the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;
• Accountability for young people under the Youth Criminal Justice Act must be “fair and proportionate” and “consistent with the greater dependency of young persons and their reduced level of maturity” (section 3(1)(b)(ii) of the Youth Criminal Justice Act. Again, young persons are entitled to a presumption of diminished moral blameworthiness.
• 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;This is often referred to as the principle of restraint. For example, custody is always to be viewed as a sentencing option of last resort, to be considered only when all other sentencing options would be unable to adequately hold the young person accountable for the offence in question.
• 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

• When a custodial sentence is imposed, this section holds that the level of custody is also to be the least restrictive one capable of meeting the Youth Criminal Justice Act’s Y sentencing goals. It must be kept in mind that the least restrictive sentence must still be the one that is most like to achieve the goals of rehabilitation, promoting a sense of responsibility in the young person, and acknowledging the harm done.
• 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.

Section 38(3): Factors to Consider

Section 38(3) of the Youth Criminal Justice Act holds that 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.

While remorse is a mitigating factor at any sentencing hearing, a young person’s failure to express remorse cannot be considered an aggravating factor. Certainly, though, demonstrating an understanding that what happened was wrong may establish that the sentencing principle of accountability has been met.

The sentences that can be given for specific offences and the range of sentences will be discussed elsewhere and depend on many factors, including the offence and the age of the accused. All youth sentences will be guided, however, by these very important youth sentencing principles. As always, this article is for information purposes only and not legal advice. If you need legal advice in Toronto, contact a criminal defence lawyer like Brian Ross at (416) 658-5855.