Backgrounder - Safe Streets & Communities Act: Protecting Canadians From Violent and Repeat Young Offenders

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Safe Streets and Communities Act

The Government introduced the Safe Streets and Communities Act on September 20, 2011, fulfilling its commitment to "move quickly to reintroduce comprehensive law-and-order legislation to combat crime and terrorism." The Safe Streets and Communities Act received Royal Assent on March 13, 2012. The criminal law amendments in this legislation will make communities safer by:

  • extending greater protection to the most vulnerable members of society, as well as victims of terrorism;

  • further enhancing the ability of Canada's justice system to hold offenders accountable for their actions; and

  • helping improve the safety and security of all Canadians.

Protecting Canadians from Violent and Repeat Young Offenders:

The Safe Streets and Communities Act includes reforms designed to help ensure that violent and repeat young offenders are held fully accountable, and that the protection of society is given due consideration in applying the Youth Criminal Justice Act (YCJA).

The Act proposes amendments to the YCJA that:

Highlight the protection of society as a fundamental principle of the Youth Criminal Justice Act

In the past, the objective of protecting society was not stated strongly enough in the Youth Criminal Justice Act. This deficiency was identified by the Honourable D. Merlin Nunn in his report, "Spiralling Out of Control: Lessons From a Boy in Trouble," which provided a comprehensive review of youth justice in Nova Scotia. Among other things, Justice Nunn concluded that highlighting public safety as one of the goals or principles of the Act was necessary to improve the handling of repeat young offenders.

Highlighting this objective within the principles of the Act gives the courts a tool to ensure that the protection of society is taken into account when dealing with youth who commit repeat offences.

Simplify pre-trial detention rules to help ensure that, when necessary, violent and repeat young offenders are kept off the streets while awaiting trial

The previous rules related to pre-trial detention were found to be confusing and led to inconsistent and insufficient application. As a result, it was often challenging to hold violent and reckless youth in custody, despite the danger they may have posed to society.

The proposed amendment simplifies the pre-trial detention rules to ensure that a youth can be detained while awaiting trial if he or she is charged with a "serious offence," or has a history of outstanding charges or findings of guilt, and there is a substantial likelihood that the youth will fail to appear in court or commit another serious offence if released.

The new test for pre-trial detention of youth is now self-contained within the YCJA, without requiring reference to the Criminal Code grounds for detention, as was previously the case. There is no longer a presumption against pre-trial detention on the basis that a young person could not, upon being found guilty of the offence, be committed to custody under the YCJA.

A "serious offence" is defined as any indictable offence for which the maximum punishment for an adult is imprisonment for five years or more, including violent offences, some property offences (for example, theft over $5,000, auto theft), and offences that could endanger the public (for example, dangerous driving, public mischief, unauthorized possession of a firearm and murder).

Strengthen sentencing provisions and reduce barriers to custody, where appropriate, for violent and repeat young offenders

Canadians lose confidence in the justice system when a sentence is insufficient to hold an offender accountable for his or her actions, or insufficient to protect society. This loss of confidence is often most notable in cases of violent and repeat offences, including in cases involving young offenders.

The amendments strengthen sentencing provisions and remove barriers to custody, where appropriate, for violent and repeat young offenders. These changes give the courts tools to adequately protect society and to ensure young offenders receive sentences proportionate to the severity of their crimes. Specifically, the legislation has been amended to:

  • Add "specific deterrence and denunciation" to the principles of sentencing to discourage a particular offender from committing further offences.

    Under the Youth Criminal Justice Act, the courts could not include deterrence and denunciation as factors in sentencing. This hampered a court's ability to establish an appropriate sentence in some cases, e.g. for repeat offenders or for offenders who demonstrate a lack of remorse or empathy for their victims. "Specific deterrence and denunciation" allows the courts to impose sanctions designed to discourage the particular offender from committing further offences, when the circumstances of the individual case indicate that this is necessary.

  • Expand the definition of "violent offence" to include behaviour that endangers the life or safety of others

    Under the Youth Criminal Justice Act, the general rule was that young persons could not be sentenced to custody unless certain conditions were met. For example, custody was a possible sentencing option if a young person had committed a violent offence. The Supreme Court of Canada defined "violent offence" under the YCJA as an offence in which the young person causes, attempts to cause or threatens to cause bodily harm.

    This definition did not capture situations in which a young person's reckless behaviour posed a risk to others, even if it did not result in injury to others. For example, a young offender who led police on a high-speed chase through a residential neighbourhood would likely have been given a custodial sentence only if someone was injured as a result.

    The amendments expand the definition of "violent offence" to include offences in which the young person endangers the life or safety of others by creating a substantial likelihood of causing bodily harm. This change gives the courts a tool to help ensure accountability and the protection of society, when the circumstances of the offence require it.

  • Allow custody to be imposed on youth who have a pattern of findings of guilt or extrajudicial sanctions

    The Youth Criminal Justice Act used to allow for custodial sentences only if a young person had committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and when the young person had a history that indicates a pattern of "findings of guilt" under the legislation. Indictable offences include very significant offences - for example, theft over $5,000, auto theft, break and entry and most assaults.

    The former requirement for establishing a pattern of criminal activity based on findings of guilt was criticized by some as being too restrictive when a young person may have committed other offences that were not dealt with through the formal justice system. As a result, it was sometimes impossible to demonstrate that an offender's history made a custodial sentence necessary to protect society or to hold the offender accountable. For example, a youth facing sentencing for an indictable offence may have had no history of findings of guilt, but a long history of extrajudicial sanctions. Without knowing an offender's full history, it is more difficult for courts to detect escalating criminal activity, and to assess whether a non-custodial sentence would be effective or appropriate for that particular offender.

    The amendments enable the courts to take into account a pattern of criminal activity, either through "findings of guilt" or through showing that the young person has a history of extrajudicial sanctions, or through a combination of both. This allows the courts to take the offender's full history into account to help determining if a custodial sentence is appropriate.

Ensure adult sentences are considered for youth who commit serious violent offences (murder, attempted murder, manslaughter and aggravated sexual assault)

Under the current Youth Criminal Justice Act, judges may impose adult sentences on youth 14 years of age and over convicted of offences for which an adult could be imprisoned for more than two years, when appropriate. In the past however, the Crown did not always apply for an adult sentence in such cases, and was not required to consider doing so, even in the most serious cases.

The amendments require the Crown to consider seeking an adult sentence for youth 14 years of age and older, who are found guilty of a "serious violent offence" - that is, murder, attempted murder, manslaughter or aggravated sexual assault. The Crown is also now required to inform the court if it chooses not to apply for an adult sentence.

Provinces and territories will still have the discretion to set the age (between 14 and 16 years) at which this requirement applies.

Require the courts to consider lifting the publication ban on the names of young offenders found guilty of "violent offences," when youth sentences are given

Under the former provisions of Youth Criminal Justice Act, unless a youth was given an adult sentence, in which case the publication ban was automatically lifted, violent offenders who were given youth sentences were generally released into the community anonymously. The implications for public safety were potentially significant - for example, parents would have no way of knowing that a sexual offender was in the area.

The amendments require judges to consider lifting the publication ban on the names of youth convicted of a violent offence and given a youth sentence when the protection of society requires it.

Require police to keep records when informal measures are used in order to make it easier to identify patterns of reoffending

The amendment requires police to keep records when extrajudicial measures are imposed to make it easier to identify patterns of reoffending. Typically, such measures could include warnings, cautions or referrals to respond to an alleged offence by a young person.

By requiring that records be kept of these informal measures, police and the courts will be better informed of past incidents so that they can take appropriate action if there are subsequent offences.

Ensure that all youth under 18 years of age who are given a custodial sentence will serve it in a youth facility

The amended legislation makes it clear that no young person under 18 will serve their sentence in an adult institution, regardless of whether they were given an adult or youth sentence. As is currently the practice, they could be transferred to an adult institution at age 18, if at that point they had not finished serving their sentence.

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Department of Justice Canada
October 2012