Youth Criminal Charges and Publication Bans
Understanding the Legal Dynamics and Implications
You may have recently read about a Calgary young person who was convicted of a killing a police officer and the publication ban on his name expiring. This article explains why publication bans exist for young people and the exceptions that may apply.
The Youth Criminal Justice Act (YCJA) sets the rules that apply to young people charged with criminal offences. A conviction (or in the youth context) a finding of guilt has serious ramifications for any young person. Publication bans are typically automatically imposed when a young person is before the court.
The purpose and reasoning behind publication bans are to allow a young person to reintegrate into the community after a finding of guilt is entered and sentence/penalty has been served. Bans on publishing a young person’s name is also aimed at avoiding the stigma of being involved in the criminal justice system which could negatively impact the young person’s ability to attend university, volunteer, and gain employment.
What Purpose Does the Publication Ban Satisfy?
One of the main protections provided to young people by the YCJA relates to privacy. The Act provides different protections that are designed to ensure that the fact that a young person has been charged with a crime does not become widely published.
Section 110(1) of the YCJA creates an offence to publish the name or any information about a young person that would identify them as a person who has been “dealt with” under the provisions of the YCJA.
While there are some exceptions to this rule, the publication ban is one of the strongest protections the legislation provides to young people. In many cases, news of an arrest becomes widely publicized in mainstream media and social media. The YCJA provisions surrounding publication bans are meant to prevent publication from identifying a young person so that the young person is not stigmatized as a “criminal.”
The concern is that painting a young person as a criminal is both unfair to the young person, and may set that person up for a life time of failure.
However, there are exceptions to the publication ban provided to young people. One exception is that if the young person ultimately receives an adult sentence for the crime in which a finding of guilt is made then the ban on publishing their name is lifted. [This happened in the recent Calgary crime case, referenced above.)
Another exception is that the law enforcement can apply to a judge for permission to publish the name of a young person, if it can establish there is reason to believe the young person is a danger to others, or publication of the information is necessary to assist in apprehending the young person.
YOUNG OFFENDERS AND CRIMINAL RECORDS
The YCJA also provides protections that are designed to make sure a young person does not get a “permanent” criminal record. Again, the purpose behind this protection is that a young person should not face a permanent barrier to getting a job or entering a profession because they were charged with an offence (and a finding of guilt was made) when they were a youth.
The YCJA provides this protection in two ways. First, sections 118 and 119 of the YCJA place strict limits on the people who are allowed to have access to records relating to a young person’s involvement in the criminal justice system. Second, section 119 of the Act also sets out strict time limits on how long those records can be accessed. This means that for a short period of time, there are a small number of people who are permitted to access a young person’s criminal record (e.g. the police, or those who are running a criminal record check). After the time limit expires, the record becomes sealed and completely inaccessible.
The time when youth records can be accessed is known as the “access period”. The length of the access period depends on the punishment or sentence the young person got at the end of their case, and generally varies from one, three and up to five years. If a young person is convicted of another youth charge while a previous charge is still in the “access period,” the time period will be extended. In addition, if a young person is given an adult sentence, the restrictions on access to the records are completely removed. If a young person turns 18 and is convicted of an adult offence while the access period for a youth offence remains open, then the protections will be lost and the youth conviction becomes a permanent entry on the young person’s criminal record.
WHAT IS THE AGE LIMIT FOR A YOUNG OFFENDER
Typically, people understand that someone who is facing a criminal charge who is under the age of 18 is a “young offender/young person.” But the definition is not this narrow. In fact, anyone who is accused of having committed a crime when they were under the age of 18 will be treated as a young offender, regardless of how old they are when they are arrested and charged. This means a 40-year-old person may be charged and dealt with in youth court if the allegations arise from the time period when the person was 12 to 18 years old.
SENTENCING AND HOW IT CAN IMPACT THE PUBLICATION BAN
The YCJA creates an entirely different sentencing regime for young people. The sentences set out for adults in the Criminal Code do not apply to young people. There are also no mandatory minimum jail sentences that will apply to a young person.
Instead, section 42(2) of the YCJA sets out different sentencing options for young people. Some of the sentencing options that are unique to young people include the possibility of reprimands, community service orders, and custody and supervision orders that are to be served first in “closed custody” (i.e. jail) and then in “open custody” (i.e. in the community).
The maximum sentences for young people are also drastically different than for adults. For example, an adult convicted of first-degree murder will receive an automatic life sentence, with a minimum of 25 years to be served in jail before they can apply for parole. For a young offender, however, the maximum sentence for first degree murder is 10 years, and only six of those years are to be served in custody. The prosecutor may apply to have a young person sentenced as an adult in certain cases. The impact of an adult sentence removes protections provided for within the YCJA.
What Will the Lawyers at Alberta Legal Do?
The lawyers at Alberta Legal have significant experiencing in defending young people charged with criminal offences all across Alberta, Saskatchewan and British Columbia. We know how to build a defence to criminal charges and protect the young person pursuant to the provisions of the YCJA. Collecting and preserving evidence can be critical. We are skilled at using defence evidence to provide the best possible defence to the charge. We also use our skills and experience in negotiation with prosecutors in order to obtain withdrawals and other creative resolutions in order to avoid trials where necessary and desirable. In some cases, trials are necessary and unavoidable. If this is the case, then having a lawyer with experience and skill in youth court is the most important factor to have for your side.
You need a lawyer who can persuasively tell your story and present your defence through cross-examination, by preparing you to testify, and by using the law and the facts to persuasively argue your defence in closing submissions.
Contact the lawyers at Alberta Legal today, if you need help in youth court.