The YCJA also introduces a new approach for the custody and supervision of young offenders given youth sentences. According to section 82,which details the purposes and principles of youth custody, the least restrictive measures (consistent with the protection of society) should be employed. Further, young peoples due process rights should be respected, and an effective review procedure should exist.
A new provision contained in the YCJA provides that judges must, when handing down a custodial sentence to a youth, reserve a proportion of the sentence (usually one-third of the sentence) to be served in the community. Another provision dealing with custody and supervision that will affect young offenders can be found in section 103 of the Act. This section provides that if there are grounds to believe that a young person is likely to commit a violent offence which could result in death or serious injury before the end of the sentence, the Provincial director can have the youth brought before the youth justice court. The court may then decide to detain the youth in custody for the duration of his sentence.
One of the most significant changes contained in the YCJA is the elimination of transfer hearings. A new process for the application of adult sentences to youths is outlined in sections 61 through 80 of the Act. At the outset of proceedings against a youth, the Crown prosecutor would give notice that an adult sentence may be sought. According to section 61, the youth must be over fourteen and stand accused of a presumptive offence or an offence for which an adult could be subject to incarceration for more than two years. The trial would then take place in youth court, and if the accused were found guilty, an eligibility hearing would follow (unless the adult sentence application is unopposed by the young person). The test, under the YOA process, requires the judge to balance the special needs of the youth and the protection of society. Under the new process, the youth court judge would consider the offenders age, character, maturity level, prior convictions, as well as the seriousness of the offence, and any other relevant factors. If the judge, taking all of these factors into account, decides that a youth sentence would not be appropriate to hold the youth accountable, the judge would then give the youth an adult sentence.
Another set of changes introduced by the YCJA worthy of mention are the provisions relating to the publication of the names of young offenders. Under the YOA, the name of a young person found guilty of a presumptive offence can not be published. Only when a young person is transferred to the ordinary court for trial, or when a youth is dangerous and at large, can his name be published. The YCJA defines a presumptive offence as either murder, attempted murder, manslaughter, aggravated sexual assault, or another serious violent offence for which an adult could face a sentence of two years or more committed by a young person who has been subject to at least two separate judicial determinations (this definition is an expansion of that contained in the YOA). When the new Act comes into force, the names of young offenders will be be publishable in cases where the youth receives an adult sentence or when the offender is dangerous and at large and the judge decides to release the youths name. If the young person is convicted of a presumptive offence but receives a youth sentence, he can apply to the court to have a ban imposed on the publication of his name. Section 109 permits a young offender to identify themselves after they have turned eighteen years of age in a publication.
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