Clause 7 of the bill adds a paragraph to subsection 38(2) of the Youth Criminal Justice Act stating that the objectives of the sentence may be "to denounce unlawful conduct" or "to deter the young person from committing offences". We would note that subsection 38(2) establishes the objectives and principles of sentencing. This import from the Criminal Code is contrary to the objective advocated by the Barreau relating to the special nature of the criminal law that applies to young people.
We note also Parliament's desire to include in section 3 of the Act the notions of denunciation and deterrence. Serious studies have shown that using sentencing as a deterrent has no effect on crime.
Clause 8 of the bill amends paragraph 39(1)(c) by adding extrajudicial sanctions as elements to be considered in imposing a custodial sentence. The Barreau du Québec is opposed to this addition for the following reasons. First, extrajudicial sanctions are applied in cases where the youth acknowledges the facts of the offence. The youth thus receives special treatment: an extrajudicial sanction. This type of sanction has great potential in terms of rehabilitation given that the youth recognizes the facts. The Barreau contends that adding this item to the list of factors the court must take into account in imposing a custodial sentence will cause the benefit which extrajudicial sanctions are intended to bring to be lost.
Further, adding extrajudicial sanctions to the list of factors to be considered will have the effect of bringing into court a measure that was designed to avoid court proceedings. The Barreau is of the opinion that the distinction between extrajudicial sanctions and sanctions imposed upon conviction must be preserved. Only the latter should be considered by the court in imposing a custodial sentence.
Currently, pre-sentencing reports do not mention extrajudicial sanctions longer than two years under section 119 of the Act. Would that time period be applied in the context of the changes to paragraph 39(1)(c)?
Finally, the Barreau would like to see all means available to facilitate rehabilitation—including extrajudicial sanctions—used before an adolescent is placed in custody. Does changing the consequences of this type of sanction create a risk of this option—which has great educational potential for the adolescent—being underutilized?
Clause 8 of the bill proposes that the Attorney General be required to notify the court of his or her intention not to seek an order that the young person be liable to an adult sentence in cases where "the offence is a serious violent offence and was committed after the young person attained the age of 14 years". It provides that "the lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of" that obligation.
The Barreau has always opposed any form of intrusion in the professional independence of prosecutors. We contend that notice preceding an application for an order must be given in order to serve the cause of justice and allow the parties to act accordingly. The prosecutor’s decision to not seek an order has no function that would justify giving notice to the court.