Area of Law: Criminal Law
Answer # 782
Extrajudicial Measures and SanctionsRegion: Ontario Answer # 782
What are extrajudicial measures?
Under sections 4 to 12 of the Youth Criminal Justice Act (YCJA), extrajudicial measures are actions that police officers and Crown prosecutors may take against young persons, which provide a substitute for, or an alternative to, a formal trial. Although the young person may have been involved in a crime, since the YCJA came into effect, more and more youth are dealt with outside of the police and courts. Consequently, young persons who commit minor crimes are less likely to be charged than adults.
What constitutes an extrajudicial measure varies depending on the province. For example, measures can include:
- taking no further action,
- a warning from police,
- a caution from police,
- a referral from police to a community program or agency designed to help youth avoid committing crimes
- a caution from the Crown, or
- an extrajudicial sanction
Extrajudicial measure programs
At what stage extrajudicial measures are used also differs from province to province, particularly in regards to being referred to community or agency programs. While some young persons are diverted into an extrajudicial measure program before they are charged and fingerprinted by the police, others are diverted after they are charged.
If a program is completed before charges were laid, the alleged charge is not proceeded with. In such cases, the young person will not have a criminal file at the RCMP and the court file will be sealed (and/or destroyed). The participant will not be left with a permanent record showing a finding of guilt.
If the young person was charged with an offence and then agrees to participate in an extrajudicial measures program, the charges are withdrawn. In such cases, if the young person was fingerprinted, a file will exist at the local police and may also exist at the RCMP. Although the distribution of these records is supposed to be restricted, it is a good idea for the young person to ensure that they are destroyed and will not resurface in future police records checks.
Who qualifies for extrajudicial measures?
Just as the types of extrajudicial measures vary province to province in Canada, so do the types of offences that meet the eligibility requirements.
Although there is no automatic entitlement to extrajudicial measures, they are presumed to be an appropriate response for persons who are first time offenders and do not have a previous criminal record. Further, the crime they committed must be relatively minor, such as theft or fraud under $5,000, mischief, or causing a disturbance. Generally, the offence must be nonviolent in nature, but depending on the circumstances, youth who committed minor assaults may be allowed to participate in an extrajudicial measures program.
Extrajudicial measures may not be available to a young person who:
- has previously been dealt with by the use of extrajudicial measures, or
- has previously been found guilty of an offence.
Changes to Youth Criminal Justice Act
Recent changes to the YCJA have been made regarding offences where the use of extrajudicial measures may be used. Specifically:
In most cases, extrajudicial measures are deemed to be adequate when a young person commits the offence of:
- failure to comply with sentence or disposition (section 137 of the YCJA), or
- failure to comply with a summons, notice, promise or order (section 496 of the Criminal Code)
Extrajudicial sanctions are a more formal type of extrajudicial measure. They are used when the youth has committed a more serious offence, or has a previous conviction. The decision of whether extrajudicial sanctions are appropriate are decided by Crown counsel, usually after a review of recommendations from a youth probation officer or other criminal justice professional who has dealt with the youth.
Extrajudicial sanctions can include many things, such as:
- community service or volunteer work,
- enrolling in a training or treatment course,
- providing a personal or written apology to the victim, and
- providing financial compensation to a victim.
As with extrajudicial measures, to participate in an extrajudicial sanctions program, the youth must not only meet the offence criteria, but must also accept responsibility for the crime, and freely agree to take part in the program.
An extrajudicial sanction may not be used if the young person:
- denies participation or involvement in the commission of the offence, or
- prefers to have the charge dealt with by a youth justice court.
Youth not eligible for extrajudicial measures
In general, across Canada, extrajudicial measures programs are not available for youth who have committed serious types of offences, which include:
- serious assaults,
- sexual assaults,
- impaired driving,
- personal violence offences,
- offences involving threats or the use of weapons, and
- offences that resulted in someone’s death.
In addition, youth who have been convicted of several offences, committed on different occasions, will likely not be eligible for an extrajudicial measures program.
If you have been charged with a criminal offence, contact our preferred criminal law experts, The Criminal Law Team
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