Provincial Offences under the Youth Justice (British Columbia) Act (2:IV)

The original Young Offenders (British Columbia) Act, RSBC 1996, c 494 [“YO(BC)A”] was proclaimed on May, 1984 to complement the federal Young Offenders Act. In April, 2004, the YO(BC)A was replaced with the Youth Justice Act, SBC 2003, c 85 [“YJA”]. The YJA imposes tougher sentences on young persons for gang activity, driving offences, and contraband activity within youth custody facilities. The YJA updates the provisions of the YO(BC)A in order to reflect new practices within the youth criminal justice system, as well as to render the provincial legislation more consistent with the federal YCJA. The YJA acts to narrowly expand custodial sentence options within the province, as well as to create a small number of new offences. Under the previous YO(BC)A, probation was the harshest sentence imposed on young persons, but under the new YJA, young persons may face jail time for six different offences.

A. Definition of Young Person and the Effect of Age on Proceedings

Under the YJA, “young person” is defined as a person who has reached 12 years of age but is less than 18 years of age (s. 1).

1. Minimum Age

Proceedings cannot be commenced against a person, nor can a person be found guilty, for any offence that person allegedly committed while under the age of 12 years (s. 2).

2. Proof of Age

The age of an accused can be proven by information recorded anywhere on a violation ticket (such as a traffic ticket) respecting the age of the person alleged to have committed an offence (s. 19).

3. Young Person Turning 18 After Offence Committed

The YJA applies to any offence alleged to have been committed by a young person, even if he or she turns 18 before or after proceedings have been commenced (s. 3(2)).

4. Effect of Incorrect Presumption of Age on Proceedings

Where proceedings are commenced against someone who is alleged to have been a young person at the time the offence was committed but it is later determined, prior to sentencing, that the person was not in fact a young person at the time of the alleged offence, the proceedings must either be dismissed if the person was under 12 at the relevant time, or continued if the person was over 18 at the relevant time (s. 20(1)). If proceedings are continued against an adult, they are valid regardless of the fact that the matter was dealt with under this Part of the YJA before the young person’s age was determined (s. 20(2)).

If proceedings are commenced against someone who was not alleged to be a young person at the time the offence was committed, and it is determined at any time prior to sentencing that the person was a young person at the time of the alleged offence, the proceedings must be continued under the YJA (s. 20(3)). Any proceedings continued under section 20(3) are valid despite the fact that the matter was not dealt with under the YJA until the person’s age was determined (s. 20(4)).

B. Jurisdiction of the Court

The YJA applies to all offences under provincial legislation. All provincial offences are summary offences. In British Columbia, all youth offences are proceeded with in the Youth Justice Court.

C. Judicial Proceedings - Excluded Provisions of the Offence Act

Certain provisions of the Offence Act, RSBC 1996, c 338, do not apply to proceedings under the YJA(s. 4(1) of the YJA). These include: ss. 57(2) (appearance of the defendant), 68(a) (absence of the defendant), 79 (costs), 88(2) (mandatory minimum fine for offences under the Motor Vehicle Act, RSBC 1996, c 318), and 112 (costs upon dismissal or abandonment of appeal).

1. Notice to Parents

If a young person is charged with an offence and is required to appear in court, the person who issued the process must immediately give written notice of the charge against the young person and the time and place of that young person’s court appearance to a parent of the young person, if a parent is available. This section does not apply where proceedings are commenced by way of a violation ticket (s. 5(1) and (2)).

If a young person is going to be detained until his or her court appearance, the officer in charge at the time of the young person’s detention must give written or oral notice of the arrest to a parent of the young person as soon as possible, if a parent is available. The notice must state the place of detention and the reason for the arrest of the young person (s. 5(3)).

If notice is not given under sections 5(1) or (3), the proceedings are still valid (s. 5(4)).

2. Pre-trial Examination and Report

Before a trial commences, the prosecutor is permitted to request that a youth probation officer examine the facts and circumstances, including the background of the young person. The probation officer must then submit a report to the prosecutor. This person is not compellable as a witness at trial (s. 6(1) - (4)).

If it is the opinion of the youth probation officer that it is in the best interests of the young person, and not contrary to the public interest, that an action other than prosecution is taken, then the officer must recommend it to the prosecutor. Where measures other than prosecution are taken, the young person may enter into an agreement with the officer who made the recommendation to help resolve his or her conflict with the law (s. 6(5) and (6)). These measures are similar to the extrajudicial sanctions under the YCJA.

3. Pre-Sentence Report

If a court considers it necessary, upon finding a young person guilty of an offence and before making a custody order, the court may require a youth probation officer to provide the court with a pre-sentence report respecting the facts and circumstances of the offence and the background of the young person. Alternatively, the court may dispense with a pre-sentence report if it is deemed unnecessary (s. 7(1) and (2)).

A youth probation officer is not a compellable witness unless it is for sentencing, a sentence review, or a sentence appeal in the particular case (s. 7(5)).

E. Sentencing

1. General

Once a young person is found guilty of an offence, the court must impose one or more of the available sentences provided within the YJA, and no others (s. 8(1)). The sentence is effective as of the date it is imposed by the court, unless the young person is already serving a custodial sentence, in which case the new sentence will be imposed on the date of expiry of the previous custodial sentence (s. 9(1), (2)).

The possible sentences available to the court are as follows:

• an absolute or conditional discharge, if there is no minimum penalty required for an adult convicted of that offence, and if it is in the best interest of the young person and not contrary to the public interest;
• a maximum fine of $1,000;
• community work service hours to a maximum of 240 hours and to be completed within a specified period no longer than one year;
• probation for a maximum of 6 months;
• custody not exceeding 30 days for specified offences under s. 8(2)(e) (for example, 2-20 trespassing on school grounds under section 177(2) of the School Act);
• custody not exceeding 90 days for other offences specified under section 8(2)(f) (for example, driving while prohibited or suspended under sections 95(1), 102, or 234(1) of the Motor Vehicle Act); and/or
• a driving prohibition for an offence under the Motor Vehicle Act.

The court must not impose a sentence that results in punishment being imposed on a young person that is greater than the maximum punishment that could be imposed on an adult who has been convicted of the same offence (s. 8(5)).

2. Sentence Review

A young person, a parent of the young person, or the Attorney General may apply for a review of the young person’s sentence if the court deems it appropriate (s. 15(1)). The application may be made at any time after three months after the date the sentence was given, or with leave of the court at any time. In the case of custodial sentences under section 8(2)(e) or (f), an application may be made once the greater of 15 days or 1/3 of the sentence has been served (s. 15(2)). Under a review, the court may vary, rescind, or confirm the sentence, or make an entirely new sentence, but the new or varied sentence must not be more onerous than the sentence under review (s. 15(8) and (9)).

The court may only review a driving prohibition made under section 8(2)(g) or section 8(3) if its terms are adversely affecting the young person’s opportunities to obtain counselling, medical treatment, education, or employment (s. 15(3)).

Before reviewing a sentence, the court may require a youth probation officer to prepare a progress report that describes the performance of the young person for the period since the sentence was made (s. 15(6)).

If a sentence or finding of guilt is under appeal, the court must wait for the appeal to be disposed of before it may review the sentence (s. 15(10)).

3. Transfer of Sentence

If the young person, or his or her parent, becomes a resident of a different province than the one in which the sentence was given, the Attorney General of the original province may make an application to the court, upon which the court may transfer the sentence to the Attorney General of the reciprocating province (s. 16(1), (3) - (5)). A sentence cannot be transferred until the time for an appeal against the sentence, or any finding upon which that sentence was based, has expired, or until all proceedings in respect of any appeal that has been taken have been completed, or any appeal has been abandoned (s. 16(2)).

F. Appeals

Appeals under the YJA are governed by the appeal provisions of the Offence Act (s. 18).

G. Special Concerns

1. Publication of a Young Person’s Identity

The provisions under Part 6 of the YCJA that ban the publication of a young person’s identity apply to the YJA (s. 4(1)). See Section III.J.2: Publication of a Young Person’s Identity.

2. Records

The provisions of the YCJA governing the records of young persons dealt with under that Act are deemed to apply to the YJA (s. 4(1)). The sections of the YCJA which apply to the YJA are ss. 114 to 116, ss. 118 to 127 and s. 129. See Section III.J.4: Records: Access and Disclosure.