Chapter 9 - Going to Court

Question 1

Provisions that allow for an arrested person to be released into the community, under specific conditions, while waiting for a court appearance.

Answer 1

Interim Release / Bail

Question 2

The court-ordered holding of an accused person in a prison or detention facility prior to a court appearance or trial, or while awaiting sentence.

Answer 2

Pretrial Detention / Remand

Question 3

Under the YCJA (2003), a serious violent offence (or any other violent offence) for which and adult would be liable to a prison sentence of more than two years.

Answer 3

Presumptive Offence

Question 4

Used when cases proceed to court and the provisions provide for specific sanctions and rules regarding the use of more formal diversionary programs.

Answer 4

Extrajudicial Sanctions

Question 5

The science and philosophy of law and its practice.

Answer 5

Jurisprudence

Question 6

The role of a lawyer in making decisions and acting in the best interest of his or her client, to ensure that the client has every possible legal advantage.

Answer 6

Legal Advocate

Question 7

A person who has been given legal authority over and responsibility for another person.

Answer 7

Guardian

Question 8

A meeting of a group of professionals to make recommendations to the court about appropriate sentence for individual cases.

Answer 8

Sentencing Conference

Question 9

Punishment for an offence committed.

Answer 9

Retribution

Question 10

Maintains that a sentence should be proportionate to the offence that a person is guilty of committing.

Answer 10

Proportionality Principle

Question 11

The theory that certain and speedy punishment will discourage or prevent future criminal behaviour, both in a general and in a specific manner.

Answer 11

Deterrence

Question 12

Basically means to deprive a person, so to put someone in prison is to incapacitate her or him in an absolute and fundamental manner.

Answer 12

Incapacitation

Question 13

A correctional philosophy based on the belief that appropriate treatment programs can reform or change an individual.

Answer 13

Rehabilitation

Question 14

In the context of a restorative justice framework, these related concepts refer to restoring balance by repairing harms.

Answer 14

Restoration | Reconciliation | Reintegration

Question 15

What is expected of a person because of his or her biological sex characteristics.

Answer 15

Gendered Expectations

Question 16

A statistical term meaning that sentences in half the cases are above the median sentence length and half are below.

Answer 16

Median Sentence Length

Question 17

Pretrial Detention

Answer 17

• Youth under 18 must be held separately from adults
• Interim release (Judicial interim Release) / Bail: may be granted after youth’s been before judge or justice of peace within 24 hours of being charged
• May be denied on 2 grounds; primary (concern re: attending court) or secondary (concern re: public safety) grounds

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• The YCJA prohibits use of pretrial detention as a substitute for child protection
• Most youth get bail: a responsible person must be considered where possible so that a young person can be released until court; could be a parent, relative, or adult who can/will take responsibility for them.
• Kept the YOA concept of releasing youth to a responsible person where possible
• Most youth who are granted interim release have conditions imposed

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• Most detained youth are 16 and 17 years of age
• More 14- and 15-year-old girls are detained than are boys of these ages
• Aboriginal youth more likely to be detained than non-Aboriginals
• Length of remand has decreased to an average of 6 to 9 days, down from 21 days in the early 2000s

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• Net widening: another way to criminalize youth who are only accused of the crime
• Those granted interim release may be taken into custody for failing to adhere to the conditions of the release (so more conditions set the up for failure).
• If detention facilities available, youth may have to leave home community to serve; Aboriginal youth especially vulnerable here because facilities not always available. A challenge for families, court systems, and young people themselves.
• Youth sometimes end up in detention due to family circumstance rather than nature of offence. Youth not able to find custodian to support them if released placed in detentions….Examination of various practices across country reveal that pretrial detention is still used as sending a strong message to repeat offenders/youth who need “wakeup call re: negative consequences of crime.” (not the purpose of pretrial detention)
• Those with minor offence charges are held in custody if no one will assume responsibility for them while awaiting trial

Question 18

Debates exist over the role of lawyers

Answer 18

Advocate: recommended by law societies. Lawyers are to act in the best interests of client and advise them of best course of action.

Guardian: Some take “parent” role. Not recommended by law society.

Question 19

Sentencing

Answer 19

• Sentencing in the past was retributive and used deterrence and incapacitation (jail) as the model
• There were problems with this approach used before the YCJA

Sentencing Principles

• Sentences should be proportionate to crime/other youth sentences for similar
• Sentences are to be least restrictive but same time meaningful to offender
• Sentences should promote restoration, reconciliation, and reintegration of the offender, but Bill C-10 has also added denunciation and deterrence as principles

Factors to be Considered in Sentencing

• Degree of participation in the crime
• Harm done to victims
• Any reparation made by the young person
• Time spent in detention
• Prior record
• Mitigating circumstances related to the youth or the offence

Question 20

Sentences: Custodial

Answer 20

• Can be imposed only if offence is violent, indictable, or youth has pattern of non-compliance with previous custodial or non-custodial dispositions
• Custody accompanying community supervision order after release
• Custody sentences must be reviewed yearly by court, but youth/parents can request review after 6 months***

Question 21

Race, Class, and Gender

Answer 21

• Aboriginal youth more likely than non-Aboriginals to receive jail time
• Young females are more likely than older ones to receive harsher treatment
• Lower-class offenders are treated harsher than middle-class offenders
• It is noted that not all youth have the same ability to abide by conditions imposed by the courts through sentencing. Those without the means to regularly attend school (home/poverty issues) are immediately disadvantaged.