By: Adam Philip Newman, Associate, Derstine Penman Criminal Lawyers
The Youth Criminal Justice Act(“YCJA”) was meant to reflect the understanding of Canadians that young persons involved in the criminal justice system have diminished moral blameworthiness when compared to that of adults. As such, the sentence imposed on a young person should be dealt with in a manner that emphasizes the principles of rehabilitation, and reintegration.
Importantly, the YCJA also makes it explicitly clear that the interpretation of its provisions should be done liberally to ensure that young persons are dealt with in a manner in line with the purpose of the Act.
The Act also provides “enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected”.
Now with all that in mind suppose there is a young offender sentenced as a youth under the YCJA, the general rule is that no person shall be given access to his record. One exception to this general rule is if the record fits within certain access periods provided by the Act. The “access period” under the YCJA depends on the sentence given to the youthful offender, and the seriousness of the crime. The YCJA also states that:
- 119(9) If, during the period of access to a record under any of paragraphs (2)(g) to (j), the young person is convicted of an offence committed when he or she is an adult, (b) this Part no longer applies to the record and the record shall be dealt with as a record of an adult;”
In other words, the otherwise sealed youth record would be kept as an adult record.
It is important to note that this legislation is not saying: that a youth offender who is convicted “AS” an adult offender (which is sometimes allowed by the YCJA) fits under this subsection, that is not what the legislation says, the legislation says: “IS”. A misinterpretation of this section could lead to an absurd situation where a young person is sentenced as youth under the YCJA at 11 am on a Tuesday. The young person has some other charges for which he will be sentenced as an adult on that Tuesday at 2:00 pm. The young person’s adult sentence would then lead to the youth conviction being unsealed and held as part of the offender’s adult record…
If only his adult sentence was given first.
The scary part is that things are not even that much better if we interpret the provision correctly. It is clear that one of the principles of the Act is that the criminal justice system should reflect youth’s diminished moral blameworthiness, and as a part of this recognition Parliament highlighted the privacy protections surrounding a youth record. If privacy protections surrounding a youth record can be shed because of actions one takes when they are an adult, does this mean that one’s actions as an adult can somehow increase their moral blameworthiness for actions committed as a youth? That would be absurd. Is Parliament trying to punish/deter adults by being allowed to use their youth records against them? Both answers are contrary to the purpose of the YCJA.