38 (a): Youth Criminal Justice - Extrajudicial Sanctions
Type of document: Prosecution Directive
Effective date: November 14, 2017
The Youth Criminal Justice Act includes extrajudicial sanctions (EJS), which are non-court measures used to hold a young person accountable for criminal conduct. These are post-charge programs designed to provide a timely method for young persons charged with a criminal offence to admit responsibility for their criminal behaviour and participate in meaningful interventions that hold them accountable. Young persons are entitled to different considerations flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment.
A notation of completion of EJS remains on a young person’s youth court record for two years, and may be considered by a youth justice court in future proceedings including when assessing the appropriateness of a custodial disposition.
The local Youth Justice Committee or the Ministry of Children and Youth Services administers EJS programming. The programming will address the young person’s offending behavior through the imposition of individually tailored meaningful consequences. In appropriate cases, young persons will make restitution or reconcile with the victims, without the necessity of formal judicial proceedings. Prosecutors must only consider EJS if a reasonable prospect of conviction exists and must not impose additional requirements on the accused person as a precondition to offering EJS.
This directive addresses diversion for young persons. For adults, please see Community Justice Programs for Adults. For an adult suffering a mental illness, please see Mentally Ill Accused: Alternatives to Prosecution. For an Indigenous young person, please see Indigenous Peoples Directive.
Prosecutors must not refer any of the following offences for extrajudicial sanctions, regardless of the circumstances of the offence or the offender:
- murder, manslaughter, infanticide, criminal negligence causing death
- driving offences causing death or bodily harm
- aggravated assault
- simple impaired driving or driving with a prohibited blood alcohol concentration or refusing to provide a breath sample
- offences involving firearms
- criminal organization offences
- terrorism offences
- child abuse and child luring
- home invasions
- human trafficking offences
- sexual assault cause bodily harm
- sexual interference and exploitation, invitation to sexual touching and incest
- any offences where the Attorney General’s consent was obtained to initiate proceedings.
Presumptively ineligible offence
In exceptional cases, the Prosecutor may refer the following presumptively ineligible offences for extrajudicial sanctions with the prior approval of the Crown Attorney or designate:
- hate-motivated offences [Hate Propaganda and Hate Motivated Offences Directive]
- intimate partner violence offences [Intimate Partner Violence Directive]
- criminal harassment
- offences involving child pornography
- publication etc., of intimate images without consent
- sexual assault.
The Prosecutor may refer any other offence to extrajudicial sanctions.
Factors to consider
In determining if extrajudicial sanctions is an appropriate non-court measure to hold a young person accountable for a presumptively ineligible offence or eligible offence, the Prosecutor and Crown Attorney or designate must consider the following factors:
Background of the young person
- the age of the young person
- any prior findings of guilt or past involvement with EJS
- the nature and number of any such previous offences
- any outstanding charges
- the role of the young person and their corresponding degree of responsibility in relation to the offence
- whether the young person had been previously victimized
- any remorse and willingness to engage in EJS or an appropriate treatment program
- any mental health concerns, and the degree that the concerns can be said to have impacted the young person’s behaviour
- whether the young person comes from a disadvantaged group
- whether the young person has been or is presently engaged with the child welfare system
- whether the young person self-identifies as Métis, Inuit or First Nation.
The circumstances and nature of the offence
- whether the offence is summary or indictable
- whether the offence involves violence
- whether the offence actually harmed the victim (physical, psychological or financial) and/or society
- whether the incident affected the sexual integrity of a person
- whether a weapon was used or threatened to be used
- whether there was an intention to cause or attempt to cause substantial property damage or loss, and if so, whether the damage was reasonably foreseeable
- whether the offence was against the administration of justice, such as breach of a court order, and, if so, the extent of non-compliance
- whether the offence involved malice, extortion, exploitation or revenge
- whether the offence involved a breach of trust
- whether the offence was motivated by bias, prejudice or hate
- whether the offence involved any type of bullying including cyber-bulling
- the age of the victim
- the views of the victim and/or their parents or legal guardians (if victim is a child), if available.
Administration of justice considerations
- public confidence in the administration of justice
- the length and expense of a trial when considered in relation to the seriousness of the offence
- the likely sentence upon a finding of guilt
- the availability of an appropriate sanction, including programming options, to hold the young person accountable for their offending behaviour and focus on correcting the offending behavior
- frailties in the prosecution e.g. staleness of the case, or the technical nature of the offence
- whether the consequences of the prosecution would be unduly harsh to the young person, the victim or any witnesses in the case, owning to such factors such as age, health or the relationship between the parties
- whether a just result is accelerated by a referral to EJS.
In this section
- Youth Criminal Justice: Extrajudicial Sanctions
- Youth Criminal Justice: Court Practices and Procedures
- Youth Criminal Justice: Resolution Discussions and Sentencing