|
Table of Contents
|
 |
Conferences
In many parts of Canada, there has been an increasing use of conferences to assist in making decisions regarding young persons who
are involved in the youth justice system. In general, "conference" refers to various types of processes in which affected or
interested parties come together to provide advice to decision makers in specific youth justice cases. Conferences were not referred
to or authorized in the Young Offenders Act (YOA), but are an explicit part of the youth criminal justice system as
envisioned by the Youth Criminal Justice Act (YCJA).
Conferences generally operate in an informal manner. They can take the form of family group conferences, community accountability
panels, sentencing circles and inter-agency case conferences. Conferences provide an opportunity for a wider range of perspectives
on a case, more creative solutions, better coordination of services, and increased involvement of the victim and other community
members in the youth criminal justice system.
One of the many possible functions of youth justice committees is to act as a conference. These committees are groups of citizens
appointed to assist in the administration of the Act or in any programs or services for young persons.
The Act defines a conference as "a group of persons who are convened to give advice in accordance with
section 19" of the YCJA. Section
19,
in turn, sets out who may call conferences, the purposes of conferences, and the authority to establish rules for them.
- A conference can be convened by a youth justice court judge, the provincial director, a police officer, a justice of the peace, a
prosecutor or a youth worker for the purpose of making a decision under the Act
(subsection 19(1)).
- Conferences may be convened, among other things, to give advice on appropriate extrajudicial
measures, conditions for judicial interim release, sentences, including the review of sentences, and
reintegration plans
(subsection 19(2)).
- It is essential to recognize that conferences are advisory only; they are not decision-making bodies. Conferences provide advice
to a decision-maker under the YCJA, such as a police officer who is deciding whether to use an extrajudicial measure or a judge who
is deciding which sentence to impose. These decision-makers are bound by the provisions of the YCJA and, therefore, the advice of
a conference must comply with the provisions of the Act that govern the decision that is to be made. The decision-maker would be
unable to accept a conference's advice if it were not consistent with the requirements of the YCJA. For example, if a conference
recommends a response to an offence that is disproportionate to the seriousness of the offence, the decision-maker is required to
reject the recommendation because the Act prohibits interventions that are not fair and proportionate to the seriousness of the
offence.
- The list of decisions mentioned in subsection 19(2) is not exhaustive. Conferences may be called for any decision that one of the
decision-makers listed in subsection 19(1) needs to make. For example,
(subsection 19(2)) refers to advice on
conditions for judicial interim release but does not refer to the decision about whether pre-trial detention of a young person is
required to ensure attendance at trial. The judge or justice of the peace may rely on
(subsection 19(2)) as a basis for calling a
conference to obtain advice about alternatives to detention that can address any concern about whether the young person will apear
for trial.
Provincial Rules Governing Conferences
- Jurisdictions (ie., provincial and territorial governments) can establish rules for convening and
conducting conferences called by police officers, the provincial director, prosecutors and youth
workers. Such rules do not apply to conferences called by judges and justices of the peace. If
such rules are established by a jurisdiction, conferences to which the rules apply must be convened
and conducted accordingly
(subsection 19(3)).
Where jurisdictions do not establish rules, conferences by decision-makers who are not judges or
justices of the peace may be convened, provided that they are consistent with the general principles
of the Act and specific provision of the act that govern the decision that is to be made.
General Principles of the Youth Criminal Justice Act
The Declaration of Principle in section 3 of the YCJA contains several important principles that govern conferences. These
principles apply to decisions made under the YCJA and therefore apply to conferences which are convened to assist in making those
decisions. Some of the key principles in section 3 that are particularly relevant to conferences are:
- The objectives of the youth justice system are to prevent crime; rehabilitate and reintegrate young persons into society; and
ensure meaningful consequences for offences.
- Young persons are entitled to enhanced procedural protection.
- Young persons are to be held accountable for their offences in a fair and proportionate way that is consistent with their greater
dependency and reduced level of a maturity.
- Interventions must be fair and proportionate to the seriousness of the offence.
- Within the limit of fair and proportionate accountability, interventions should encourage the repair of harm done, be meaningful
for the young person, and respond to the needs of young person with special requirements;
Specific Provisions Related to Key Decisions
The YCJA also contains several specific provisions to guide decisions related to extrajudicial measures, pre-trial detention,
sentencing, and custody and reintegration. If a decision-maker calls a conference to assist in making one of these decisions, the
members of the conference must keep these provisions in mind when conducting the conference and formulating advice to the
decision-maker. Recommendations that are not in accordance with these provisions cannot be accepted by the decision-maker.
Some of the key provisions that are particularly relevant to conferences related to these decisions are listed below. Detailed
discussion of the provisions are elsewhere in these explanatory materials.
Extrajudicial Measures
- Extrajudicial measures should be used in all cases where they would be adequate to hold the young
person accountable.
- Extrajudicial measures are presumed to be adequate to hold first-time, non-violent offenders
accountable.
- Extrajudicial measures may be used if the young person has previously committed offences.
- The objectives of extrajudicial measures include repairing the harm caused to the victim and the
community; providing an opportunity for victims to participate in decisions; ensuring that that the
measures are proportionate to the seriousness of the offence; and encouraging the involvement of
families.
Pre-trial Detention
- Pre-trial detention is not to be used as a substitute for child protection, mental health or
other social measures.
- If the young person could not be sentenced to custody if found guilty of the offence, it must be
presumed that pre-trial detention is not necessary for the protection or safety of the public.
Sentencing
- The sentence must be proportionate to the seriousness of the offence and the degree of
responsibility of the young person.
- Within the limit of proportionality, the sentence must be
- the least restrictive alternative;
- be the sentencing option that is most likely to rehabilitate and reintegrate the young person; and
- promote in the young person a sense of responsibility and an acknowledgement of the harm done by
the offence.
- The sentence must not be more severe than what an adult would receive for the same offence.
- The sentence must be similar to youth sentences in similar cases.
- Custody is restricted to violent and serious repeat offenders for whom there is no reasonable
alternative to custody.
Reintegration
- The purpose of the custody and supervision system includes assisting young persons to be
rehabilitated and reintegrated into the community as law-abiding citizens by providing effective
programs to young persons while under supervision in the community.
- The least restrictive measures consistent with the protection of society be used.
- Young persons sentenced to custody and supervision retain the rights of other young person with
certain exceptions.
- The involvement of families and members of the public should be facilitated
|
